Observations on behalf of the Crown

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Before offering any remarks upon the Statement which has been prepared by the Officers of the Duchy, it will be well, by way of preface, briefly to consider what is the nature of the subject in dispute, and of the general title of the Crown, by the common law of the country, to property similarly situated in other parts of the kingdom, and what is, and must be admitted by the Duchy to be, the sole origin and foundation of the claim of His Royal Highness the Prince of Wales.

    The shores and bed of the sea, and of tidal estuaries, including the minerals lying therein, are, as it is submitted, land in the ordinary acceptation of the term, and can only pass like other real estate. In Sir H. Constable's case, 5 Rep. 107., and the Barclay case, cited by Lord Hale in his treatise De Jure Maris, p. 34., it was held that the seashore between high and low water mark may be parcel, and pass by the grant, of a manor ; and in the recent case of the Duke of Beaufort v the Corporation of Swansea, 3 Exch. 413., it was established that the seashore of a considerable portion of the county of Glamorgan passed under a grant of "terra de Gower" to a predecessor of the Duke of Beaufort.    Now, had the right of property in the seashore, as distinguished from the right of dominion or jurisdiction, been a prerogative right, it is submitted that such a right could clearly not be parcel of a manor, or have passed from the Crown without express words.   It is, therefore, conceived that (except as regards the presumption of law in favour of the Crown, to which reference will be hereafter made,) the question of title to land forming part of the bed or shore of the sea, involves the seisin of the soil and freehold, as much as in regard to land in the interior, and that a right to it must be established in the same manner.   In Scratton v. Browne, 4 Barn. & Cress. 485., the shore of the sea was regarded by the Court as land, with all its technical attributes, and as a corporeal hereditament.

"The narrow sea adjoining to the coast of England " (says Lord Hale, in the 4th chapter, of his treatise De Jure Maris,") " is part of the wastes and demesnes and dominion of the King of England, whether it lie within the body of any county or not.   In this sea the King hath a double right, viz., a jurisdiction which he ordinarily exerciseth by his admiral, and a right of proprietary or ownership ;  the latter is that which I shall meddle with." The former right, that of jurisdiction (jus publicum), is apprehended to be a prerogative right exercisable for the benefit of the public, in the protection of the navigation and fisheries, and in the suppression of nuisances.   This right, it is apprehended, cannot be divested from the Crown except by Act of Parliament. The latter right, that of property (jus privatum) is the subject to which the present question and the following observations have reference.

The foundation of the Crown's title to the property in the bed and shores of the sea, and of tidal rivers so far as the tide flows, and to the minerals therein as part of the soil and freehold, is conceived to have been the same as that of the title which originally it had in presumption of law to all other lands in the kingdom.   According to the feudal system, which regulated the tenure of real property in this country, all lands were held either immediately or mediately from the sovereign ; and whatever land at any particular time had not already been granted away by the reigning Monarch or His predecessors, remained vested in the King,-in right of His Crown, it is true, but not by virtue of any prerogative title, as generally understood.   From the nature of the land below high water, it was in early times, and, as to by far the greater part of it, is even to the present day, wholly incapable of profitable occupation ; and hence but VC.TV few grants were made of land so situate. A 2

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It has been laid down that a vacant possession of land in the interior of the country is a possession of the Crown, and the same principle arising in like manner from the tenure of land being applied to the seashore,-which is either permanently, or at all events twice in every twenty-four hours, covered with water, and is, therefore, incapable of appropriation,-has furnished a foundation for the presumption of law, which most unquestionably exists, that the shore of the sea "between ordinary high water and low water mark doth primá facie and of common right belong to the King, both in the shore of the sea and of the arms of the sea."-Hale, De Jure Maris, cap. 4 (1).   The present Lord Chancellor (Lord Cranworth), in the recent case of the Attorney General v. Chambers, 4 De Gex, Macnaughten, and Gordon, p. 206., when referring to this presumption, said : "The principle I take to be, that it (the seashore) is land not capable of ordinary cultivation, or occupation, which was described by Lord Hale as generally dry and manoriable, and so it is in the nature of unappropriated soil"  

For these reasons and upon these authorities, in corroboration of which many others may be cited, it is submitted that the seashore is land in intendment of law as well as in fact ; that the title of the Crown to all land so situate which has not been already granted away is a territorial right to the soil and freehold vested in the Crown by the common law, and a right of property, therefore, which can only be passed by instruments framed in terms apt to pass real estate, and containing either express words indicating an intention to convey it, or a general description of a territory, such as a manor, or the like, which may comprehend it, and of which it may actually be part and parcel.

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    Such being the nature of the property in question, it is proposed to consider in the next place what were the origin and foundation of the rights of the Duke of Cornwall.   These rights are derived solely from the grants of King Edward III. in favour of his son, the Black Prince, confirmed by Parliament, made long within legal memory, which are forthcoming, and which are expressed in language as clear and as precise, and as easily construed, as the most modern royal grants.   The sole question, therefore, between the Crown and the Duchy is, what, according to the ordinary rules of construction, were the true intent and meaning, the legal effect and operation, of the royal grants ?   The Duke has everything given by them, not since alienated, and nothing more.

    And although it is proposed in these observations to proceed to an examination seriatim of the several positions advanced in the statement of the Duchy, the Officers of the Crown cannot but express their conviction that the greater part of that statement has not been directed to the consideration of the real question, viz., the legal effect of the grants of King Edward III., but has substituted for it antiquarian suggestions as to the ancient status of Cornwall.

The Officers of the Crown conceive that such an inquiry must be wholly without practical result as to the question at issue, unless it can be shown that some special rules and principles of construction are to be applied to Royal grants of subjects in or connected with the County of Cornwall.

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In making such observations upon the document drawn up on behalf of the Duchy, as have occurred to the officers of the Crown on perusing that paper, or have suggested themselves in the investigation which has taken place since it was received, it is proposed that the remarks should, in the first place, be addressed specifically to the statements and arguments of the Officers of the Duchy, and that they should conclude with such as are of a more general character.

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The statement under consideration commences with a remark, that it does not appear from the case prepared on behalf of the Crown that any act of ownership on the part of the Crown has ever been exercised over the property in question, or that any other title is asserted than the primá facie common law prerogative right of the Crown in general to property of this description, and which is now asserted for the first time in opposition to the Duchy, after the lapse of many hundred years.

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    The case alluded to was a preliminary statement of the Crown's title at common law to the bed and shores of the sea around the kingdom, and at the time it was delivered it was intimated that the Officers of the Crown would wish to have an opportunity of making such observations as might be necessary upon the case of the Duchy when prepared.   It is believed that it is wholly inconsistent with the practice pursued in similar cases in courts of justice in this country, to give any evidence in the first instance in support of a primá facie right existing by the law of the realm, the burden of proof resting with the person disputing that right to shew either that it has no application to his particular case or that he has a derivative title from the owner of such right or one of his predecessors.   After such proof is given as the adverse claimant is able to adduce, it then is at the option of the primá facie owner either to contend that the evidence given is not sufficient to displace his title or to rebut by other proofs the evidence already brought forward by his opponent.   The case originally submitted on behalf of the Crown in reference to the subject under consideration was therefore, of necessity, confined to a statement of Her Majesty's title to the property in question by the common law of the land, a right which, for the reasons already given, appears to be a territorial rather than a prerogative right, and one which has been vested in the Sovereign from time immemorial, and than which, therefore, none can be more ancient, or be entitled to greater respect.   It may hereafter be requisite to consider what acts of ownership have been exercised by either the Crown or the Duchy over the property in question ; but having regard to the antiquity and nature of the Crown's right, it is submitted with much deference that it would be more accurate to say the claim of the Duchy is now asserted for the first time in opposition to the common law title of the Crown after the lapse of many hundred years, than the converse of such an allegation.

It is contended on the part of the Duchy, that this general primá facie right of the Crown has not application against the Duke of Cornwall within his Duchy or County of Cornwall, and consequently not to the particular property forming the subject of the present question ; inasmuch as that in very ancient times, long before legal memory, probably from the time when the Britons were driven bv the Saxon invasion to the extremities of the kingdom in the west, Cornwall appears to have been, like Wales, a distinct principality ; that at the time of the Conquest and subsequently it was still treated in many respects as distinct from England, and when it afterwards became an English county it still retained many, if not all, the rights of a county palatine, and was granted sometimes with more, sometimes with fewer, jura regalia to the successive Earls of Cornwall, and was ultimately granted as a Duchy when for the first time a dukedom was created in England in favour of the eldest son of the King ; and it is not to be conceived that the new title was to be attended with less dignity, power, and perogative than the Earls had enjoyed ; that the grant to the Dukes has always been construed in accordance with this view, and has been so treated, not only by the solemn resolutions of courts of justice, but also by the Legislature of the country.

    It may be observed, as to the supposed analogy between Cornwall and Wales, that from the time of the annexation of Wales to the Crown of England, the Sovereign rights of the latter over the lands and shores of Wales, and the sea surrounding the same, have been as clear and as indisputable as those over the rest of the realm ; and it has never been suggested that the creation of the Heir Apparent as Prince of Wales by Edward I. and his successors carried with it any portion of the Royal Prerogative, or Royal Property, within that principality.   Up to the time of conquest of Wales, the British Princes of that country, within such portions of it as had not from time to time been conquered by the Lords Marchers doubtless exercised all Sovereign rights, both as to jurisdiction and property ; but if the creation of the high title of Prince of Wales in favour of the Heir Apparent did not carry with it those Sovereign rights, or any of them, what becomes of the suggestion that the creation of the undoubtedly high, but inferior title of Earl or Duke of Cornwall carried with it any of the Sovereign rights of the British Prince of that territory ?

The word "Duchy" is used at the commencement of the paragraph which has been quoted at length as a word of the same import, or as expressing the same A 3

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    territory as the word " County,"  " His Duchy or County of Cornwall," and then, by an easy transition, the rest of the paragraph refers exclusively to the County.   It will, however, hereafter be shown, that while, on the one hand, in the constitution and subsequent charters to the Duchy many estates and fran chises not situate in, or in any way connected with, the County of Cornwall were granted by the Sovereign as a provision for the Heir Apparent to the throne ; so, on the other hand, there was no grant of the County, no general grant of all the estates and franchises to which the King was entitled within that County ; but a specific enumeration in detail of every particular which was to be annexed to the Duchy, not including, either by express terms, or by inference, the land which is the subject of the present question, nor indeed several other rights of the Sovereign within the County, an enumeration, moreover, prefaced by this distinct recital :  " AND LEST HEREAFTER IN ANYWISE IT SHOULD BE TURNED INTO DOUBT WHAT OR HOW MUCH THE SAME DUKE" (of Cornwall), "OR OTHER THE DUKES OF THE SAME PLACE FOR THE TIME BEING, OUGHT, TO HAVE IN THE NAME OF THE DUCHY AFORESAID, WE HAVE CAUSED ALL THINGS IN KIND WHICH WE WILL TO PERTAIN TO THE DUCHY TO DE INSERTED IN THIS OUR CHARTER :   THEREFORE WE HAVE GIVEN AND GRANTED, &c.-Char. II., Edw. III.   If the Duchy of Cornwall is not co-extensive with the County, then the whole of the statements and arguments relative to the County being formerly distinct from England, and the like, interesting as they may be, in so far as they bear upon matters of history, will become irrelevant to the question now raised.   For the present, however, it is proposed to follow the observations which have been made in the Statement of the Duchy relative to the County of Cornwall, subject to the protest in limine that the Duchy is not co-extensive with the County.

    No authority of any description is cited on the part of the Duchy in support of the contention that the general right of the Crown has not application as against the Duke of Cornwall within the Duchy or County of Cornwall.   Neither Glanville, Bracton, Horne, Fitzherbert, Rolle, Callis, Selden, Lord Hale, Staundford, Blackstone, Chitty, Hall, or so far as can be traced any other writer upon the subject (either in ancient, or in modern times), so much as hints at the exclusion of Cornwall from the territory over which the general right of the Crown and the common law of England extend.   Had any such doctrine obtained at the time when Lord Hale composed his well-known treatise De Jure Maris, it is thought he could hardly have failed to notice it; indeed his attention appears to have been expressly drawn to the rights of the Earls of Cornwall, for he says (De Jure Maris, Chapter 7.)  " the Earl of Cornwall which, though it were not a county palatine, had many royalties belonging to it,- had wreccum maris per totum comitatum Cornubiæ, viz., as against the King, though particular Lords might prescribe for it."   If the County of Cornwall had been considered exempt from the ordinary rule and presumption of law as to sea and seashores it would have been almost impossible that Lord Hale should not have mentioned the fact.

    Not only is the position contended for on behalf of the Duchy that the " general primá facie right of the Crown has not application as against the " Duke of Cornwall within his Duchy or (the) County of Cornwall,"  entirely unsupported by authority, but it is, as the Officers of the Crown submit, inconsistent with every principle, of English law.   Nor is it easy to see how the denial of the right of the Crown can in any way advance the title of the Duke. If the seashore, was not the Crown's to grant, how can the Duke, the grantee of the Crown, make any title to it, or how could the Earls of Cornwall, the feudatories of the Crown, have had any title to it ?   What right could the Duke assert against any trespasser on the seashore, but a derivative title founded on the clear original right of the Crown ?  

The suggestion of this point, therefore, if there were anything in it, would be adverse to the title both of the Duke and of the Crown.   There appears, how ever, to be really no ground for it.

    It may be true that, until about the close of the Saxon era, the County of Cornwall formed an independent Sovereignty.   From the time, however, of its conquest by Athelstan, about the middle of the 10th century, there is no reason to doubt that it became subject to the English Crown, like the rest of the kingdom ; but whatever may have been its condition or government before the Norman Conquest is no more than a matter of historical interest, so far as respects the

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present question, for from that period dates the recognition and adoption of the fundamental principle of the law of tenure in England, viz., that the King is the universal lord and original proprietor of all the lands in His kingdom.

    It need scarcely be stated that at, and after the Conquest the Norman King's made extensive grants to their retainers, and even to the Saxon nobility, to be held as honors or baronies under the Crown, and that in some instances a few of the counties of England, namely, Chester, Lancaster, Durham, and also Pembrokeshire, and Hexhamshire in Northumberland, were created Counties Palatine.

    There is no trace, however, of the County of Cornwall ever having been a County Palatine, or in the nature of a County Palatine.   Lord Coke, in his 4th Institute, p. 204., gives the following description of a County Palatine:-

    "It is called comitatus palatinus, a county palatine, not a comite in respect of the dignity of an earl, but a comitatu and palatioregis, because the owner thereof, be he duke or earl, &c., hath in that county jura regalia as fully as the King had in his palace, from whence all justice, honors, dignities, franchises, and privileges as from the fountain at the first flowed.   The power and authority of those that had counties palatine was kinglike, for they might pardon treasons, murders, felonies, and outlawries thereupon.   They might also make justices of eire, justices of assize, of gaol delivery, and of the peace; and all original and judicial writs, and all manner of indictments of treason and felony, and the process thereupon, were made in the name of the persons having such county palatine ; and in every writ and indictment within any county palatine it was supposed to be contra pacem of him that had the county palatine.   But these and some others are taken away from them that have such counties palatine and annexed to the Crown, and all writs to be made in the King's name, but the teste is in the name of him that hath the county palatine, and they shall have forfeitures of lands and goods for high treason, which forfeiture accrueth by the common law ; but for treason or forfeits given after the erection of the county palatine by any Act of Parliament they shall not have them."

    It is not suggested that any subject, either as Earl or Duke of Cornwall, ever had or claimed to have these high Sovereign rights within the County of Cornwall.

    To show that the County of Cornwall during the reign of William I. was part of the kingdom, and differed in no respect from the other counties of England, the Officers of the Crown refer to the record of Domesday Book. It seems at that time, according to the historians Ordericus Vitalis and W. D. Gumieges, for no enrolment of grants of that remote period is preserved, that amongst the titles and honors created by the King, he had created his half-brother, Robert Earl of Moreton, Earl of Cornwall, and had bestowed very great possessions on him in that County ; accordingly, in Domesday Book, this Earl is returned as holding of the King numerous manors and lands, other lands in the County being returned, some as in the King's hands, some as belonging to the Bishop of Exeter, the churches of Tavistock and St. Michael Judhail de Totness, and one Joscelin.

There is nothing in the Survey to denote any superiority enjoyed by the Earl over the other landholders of the county, nor any trace of a county palatine, nor of the county being then one great principality, honor, or seignory, of which the other manors and lands within the county were held.

    It is clear, also, from this record, that the county was part of the kingdom of England, not only at the Conquest, but in the time of Edward the Confessor, for the King's lands are confined to those which belonged to the Confessor, and the Survey also states who were the holders of the lands of the Earl and the others while the Confessor held the throne of England.

    It must be concluded, therefore, that the county was not at the Conquest distinct from the rest of England, and that the Earl of Moreton and Cornwall was then a feudatory and tenant of the Crown in respect of the manors and fees he held in the county, in the same character as he held his other possession in the kingdom.

There can, in fact, be no question but that at, and from and after, the Conquest, Cornwall was parcel of the realm of England, subject to the direct and immediate dominion and sovereignty of the King, by whom, and whose courts and judges, justice was administered there as in all the other non-palatine counties, A 4

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there being no intermediate feudal sovereignty nor palatinate, nor (as was the case in several parts of Wales) a quasi sovereign, Lordship Marcher.

   It is stated, again, that after Cornwall became an English county "it still retained many, if not all the rights of a county palatine."   As there is no authority for saying (indeed, it is not directly urged) that Cornwall ever was a county palatine, it can hardly with propriety be said to have retained all or any of the rights of a palatinate.

   The next statement, that the county was "granted sometimes with more, sometimes with fewer, jura regalia to the successive Earls of Cornwall," establishes, as it is apprehended, conclusively, first, that the Crown had jura regalia to grant ; secondly, that neither all nor any of the jura regalia so granted were by prescription annexed to the Earldom, but that they were granted by the Crown at pleasure, sometimes more and sometimes fewer, as separate franchises ; and, thirdly, that the King was entitled to them, and granted them in right of His Crown.   If they had been inherent rights in the Earldom, if they had passed by the creation of the title, there would have been no necessity for any specific grant by the Crown.   If in the successive new creations of Earls of Cornwall, "sometimes more, sometimes fewer jura regalia" were granted with the dignity, it would clearly have been necessary, in order to show what jura regalia any particular Earl of Cornwall was entitled to, that proof should be given of the rights which had been specifically granted to him, whether he held the earldom " with more " or " with fewer jura regalia," and it is conceived the same course must be adopted to ascertain what rights have been granted to the Duchy.

Next it is said, " The county was ultimately granted as a Duchy, when for the first time a dukedom was created in England in favour of the eldest son of the King, and it is not to be conceived that the new title was to be attended with less dignity, power, and prerogative than the Earls had enjoyed"
   The Officers of the Crown conceive that this paragraph contains, in truth, the whole substance of the case on the part of the Duchy.   It is assumed, without foundation, as they believe, that the Earls of Conrwall had, from the earliest. times, sovereign rights over the whole County of Cornwall, its seashores and seas ; and because previous Sovereigns of England had given these extensive rights to other subjects whom they created Earls of Cornwall, it is assumed that when Edward III. made his eldest son Duke of Cornwall, he must have meant to have given him powers and prerogatives (including in the word prerogative the Sovereign's territorial right to the seashore and bed of the sea), as large as any previous Sovereign had ever given to any former subject.   The Officers of the Crown are unable to understand how such an assumption can be legitimately made, or how it can be legitimately used, either to enlarge or construe the Royal Grant.   It cannot be contended that the mere creation of the title of Duke of Cornwall carried with it any of the Royal property or power within the County of Cornwall.   Titles of honor derived from dominions, counties, or towns did not in the time of Edward III., any more than at present, convey either jurisdiction or property over or in the places whence they were derived.

   The Officers of the Crown are further unable to discover any foundation for the statement that "the county was ultimately granted as a Duchy."   The charters make no such grant, and there is nothing whatever in them, as is submitted, to indicate any such intention ; on the contrary, in the Charter of Creation, the King expressly stated, that in order that it might not be turned into doubt what or how much the Duke ought to have in the name of the Duchy, he had "caused all things in kind" which he willed to pertain to the Duchy to he inserted in that charter.   The creation of the Dukedom had no connexion with the previously existing Earldom.   The last Earl of Cornwall was John of Eltham, brother of King Edward III., and on his death the Earldom became extinct, and the possessions and franchises held by the Earl reverted to the Crown, and became once more part of the Hereditary Revenues and rights of the Sovereign.    On the 17th March, 11 Edw. III., the King created the Duchy of Cornwall, and granted to the Duke for the time being by specific enumeration in detail, not only the greater part of the possessions which had reverted to the Crown on the death of the last Earl, but also estates in various other parts of England, which like the former had previously formed part of the Hereditary Revenues. There are no general words to indicate any intention that the Duke

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was to have all the estates or be entitled to the same rights that the last Earl had, or was entitled to.   There is no reference whatever to the Earl, nor to any Earldom, nor to any previously existing feudal lordship or dominion.   If there had been, it might have been useful to shew what the estates and rights were which the last Earl enjoyed, and whether he was one of the Earls who held the title " with more" or " with fewer" jura regalia than the others.   But unless the Dukedom had some necessary relation to the Earldom there would be no inconsistency in supposing that as large estates in various counties were annexed to the Dukedom which were never enjoyed by the Earls, so the King might have been minded to omit from the enumeration of "all things in kind" which he willed to pertain to the Duchy many or some of the rights, whether territorial or otherwise, which had been enjoyed by some of the Earls.   This after all is on either side a matter of useless conjecture, the question being, it is submitted, not what it is probable the King meant, but what he did, namely, what posssessions and rights of the Crown were annexed to the Duchy by charter or Act of Parliament, and whether the property in question is among them.   Admitting, as indeed cannot be disputed, that the Duke can have nothing but what was vested in the King at the time of the grants to the Duchy, then whatever may have been the extent of the rights of the last Earl or any former Earl, unless any of the charters to the Duchy contain words which are sufficient in law to pass the property in question, whether it be a territorial right or a prerogative right, away from the Crown, and vest it in the Duchy, it has never been transferred from the Sovereign, and Her Majesty is now seised of it de Jure Coronæ.   The slight reference in general terms to the actual charters from the Crown to the Duchy, which is contained in the Statement under consideration, notwithstanding that they form the sole title of the Duchy, is very observable.   It will render it necessary for the Officers of the Crown to advert at some length to those grants, with the view of ascertaining whether any one of them or all of them taken together contain words which by any possibility can be construed as vesting the territory or prerogative right in question in the Duchy.   But they think it may be useful to show first how little foundation there is for the assumption that the property or right in question, or any property or right, was vested in the Earls of Cornwall by any original prescription or peculiar right differing from that of any other grantee of the Crown, or that there was any peculiar law of Cornwall in respect of the royal power, territory, or prerogative.

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In the absence of the grant to the Earl of Moreton and Cornwall, it cannot be certainly known whether anything, or what, was granted with, or besides the specific manors mentioned in Domesday Book.

   By the word "County " is ordinarily meant, as the Officers of the Crown apprehend, not the territory, nor the soil of the County, nor the Prerogative rights of the Crown within it, as seems to be assumed throughout in the Duchy Statement, but simply certain ascertained terms or rents forming the corpus Comitatus, and at this day known as the viscontiel rents, together with the profits of the civil jurisdiction and government of it, through the sheriff.

That the grant of a county is ordinarily to be taken in this restricted sense may be inferred by the practice prevailing during the reign of the Norman kings of letting out at ferm almost all the counties of England, of which abundant proof is afforded by the Great Rolls of the Pipe and other records of that period.    It is, therefore, obvious, if the large sense in which the Duchy Statement interprets the term--." County" be correct, the Crown would not have exercised its jura regalia either in Cornwall or in any of the counties put out at ferm, a conclusion quite at variance with the reasoning in the Duchy Statement as to the special favor and dignity shown to the Earls of Cornwall. But that the ferms of counties did not pass any of the prerogative rights of revenue as vested in the Sovereign, and that they formed only a small portion of the Crown revenue, is manifest from the Records of the Exchequer, which show that, besides the ferms of counties, the Crown was answered separately and distinctly of the profits of its ancient demesnes, its escheats, the temporalties of bishoprics and monasteries,  the feudal returns arising from its demesnes and escheated honors, &c., such as reliefs, wardships, &c., fines and amerciaments in courts of justice, aids. scutages, tallages, customs, and more

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especially of what was called the casual revenue, which comprised treasure trove, waif, wreck of the sea, and chattels of felons and fugitives, &c. (Madox. Hist. of the Exch., cap. 10. sec. 5. &c.)

In describing the form of making up the sheriff's accounts, Madox states that it consisted of several parts, viz., the corpus comitatus, and other profits. The corpus comitatus, he says, consisted of several manors and lands, which, being letten or committed together to the sheriff, made the fund out of which the annual term to the Crown arose. (Hist. of Exch., cap. 28. sect. 2.)

Little is known of the acts of Earl Robert, except as mentioned in the Duchy Statement (folio 4.) that, about the year 1085 (19th Will. I.) he gave to the Monks of the foreign abbey of St. Michael, in Normandy, a site on the island of Mount St. Michael, in Cornwall, on which to found a cell. The Statement proceeds to say (folio 4.), "that in subsequent legal proceedings it is declared that the Earl being lord of the county, was seised of the castle and honor of Launceston, and of Mount St. Michael as appertaining to that castle and honor ; and that the locality shows the great extent of the honor in question.    This honor being expressly named in the Duchy charter."

   This charter of Earl Robert affords evidence that he had obtained a grant of the castle and honor of Launceston, and that Mount St. Michael was part thereof, by virtue of which, and as holding a barony under the Crown, he was enabled to confer Mount St. Michael on the Monks, but not, as it will appear, the franchise of a market.   The following is the substance of the grant :-

" I, Robert, by the grace of God Earl of Moreton, give and grant the Mount St. Michael of Cornwall to God and the Monks of the Church of St. Michael, de periculo maris, with half a hide of land, as free and quit as I held the same, from all customs, plaints, and pleas.   And I appoint that the same Monks, by the grant of my lord the King, have a market there on Friday."   He then grants to them other lands,   "so quit and free of all pleas, plaints, and forfeitures, that the Monks shall answer of no matter of royal justice, unless of homicide alone.   And this grant I have made, these being witnesses," &c.

It is not known when Robert Earl of Moreton and Cornwall died, but it must have been before the 4th Hen. I. (1104), for it is stated by Dugdale that in that year his son and successor William, after flying to Normandy and being brought back a prisoner, was deprived of all his castles and possessions by the King.

The title of Earl of Cornwall is stated to have been next conferred on Reginald de Dunstanville, an illegitimate son of Henry I., in the 5th Stephen (1140).

   Considerable lands in the county, though probably not to the extent of the preceding Earl's possessions, were bestowed on him for in the 12th Hen. II. (1166), it is shown by the Red Book of the Exchequer, he certified his knight's fee to be 215 marks and one third in Cornwall, and in the 14th Hen. II. (1168), on an aid being levied on the King's tenants in capite for marrying his eldest daughter.  

By the Great Roll of the Pipe of the same year it appears that Earl Reginald was assessed on and paid into the Exchequer 225 marks 4s. 5d. for his knight's fees in the counties of Cornwall and Devon.

If the county at this time were a distinct feudal sovereignty or principality, or great lordship vested in him, the certificate of the Earl and his assessment to and payment of the aid levied on him as the King's tenant in capite of the knight's fees in 'Cornwall and Devon are inexplicable.

It was this Earl who is mentioned in the Duchy Statement (folio 3.) as having made a grant to the burgesses of Truro, and which is addressed to "all his barons of Cornwall and all his free tenants, as well English as Cornish," and wherein the burgesses of Truro are described as "his burgesses."

   This language was not unusual with the greater lords or barons, who, having had a large extent of territories granted to them, in their turn before the Statute of Quia emptores, granted out smaller districts to others, to be held of themselves chiefly by knight's service.   In other cases they were to be held by socage tenure, and if granted to inhabitants of the towns, would be held by that description of socage tenure which is called burgage tenure ; and such great lords had and continually exercised the power of granting to their tenants

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various liberties and privileges within their lordships.   Their chief tenants were called barons, as the King's tenants were.

   The same terms, "my burgesses," as are used in this charter are found in a charter of Reginald de Valletort, another of the great barons of Cornwall who lived during the reign of King John and Henry III., and who was lord of the castle and barony of Trematon, which he made to the burgesses of Saltash, situate within that district, as will be seen by the following extract taken from a charter of Inspeximus and confirmation of it by the Crown, in the 5th Rich. II.

"Richard, by the grace of God, &c., we have inspected a charter which Reginald de Valletort formerly made the free burgesses of Essa (Saltash) in. these words :  Know all men, present and to come, that I, Reginald de Valletort, have given, granted, and by this my present charter, confirmed to my free burgesses of Essa (liberis burgensibus meis de Essa) all the liberties and free customs underwritten, which they have had in the time of my ancestors, namely," &c. &c.

   With respect to the charter of Earl Reginald being addressed to "All his barons of Cornwall, and all his free tenants, as well English as Cornish" it is evidence only that the aborigines, being probably treated as a conquered race, it was considered necessary to make special mention of them in order to entitle them to the full privilege of the dominant race.

   A charter of liberties was granted about this time by Robert Earl of Gloucester, another baron of the county, to one Robert Pincerne, to be exercised in the manor of Coverton.

   This charter, as well as that of Reginald Earl of Cornwall and Reginald de Valletort, was confirmed by the king, and seems to establish sufficiently the fact of the early feudal lords being allowed to exercise considerable powers of jurisdiction in their lordships, but which were not of general validity or recognized by the King's courts until they had been ratified by the Crown.   The inference therefore drawn by the Duchy Statement (folio 4.), "that it is clear the Earls exercised the prerogative right of granting by charter, as in the case of the Crown,"  if carried to its full extent would equally apply to De Valletort and the Earl of Gloucester as much as to the Earl of Cornwall.    Innumerable instances of like grants by feudal lords might be found in all parts of the realm.

In the 21st Hen. II. (1175) it is stated in the baronage that this Earl Reginald died, and leaving no legitimate issue, the Earldom became extinct, and all his lands and possessions escheated to the Crown as the superior lord.

Before tracing further the history of the Earldom, it is proper to draw attention to one species of property in this county almost peculiar to it, and essentially connected with its soil, namely, the stannaries or tin mines there, and from a few particulars of their history, some light will be thrown on the main question in this case, namely, to whom the ownership of the soil of the county belonged in early times.

There is no express reference to the tin mines of Cornwall in Domesday Book, not of course from their not having been then discovered, as it is generally admitted that they were worked long before the Christian era, but owing, it is supposed, to this country, after its subjugation by Athelstan, having been overrun and wasted by the Danish invaders not long before the Norman Conquest,

   No legal evidence exists connected with the stannaries until the 9th Ric. I. (1198), in which year it appears by a record of the Exchequer, that certain inquisitions were made by Commissioners appointed by the Crown to determine, amongst other things, the value of the profits and tolls due by ancient custom to the King, upon the weight of tin raised in the mines in the counties of Cornwall and Devon, previously to their being fermed by one William de Wrotham ; and in the next year (10th Ric. I.) and following years, it is shown by the Great Rolls of the Pipe, that William de Wrotham accounted to the Exchequer for the profits of these mines at the rate previously. agreed upon.

   In the next reign the following charter was granted by the King to the tinners of Cornwall and Devon.

[29th October, 3d John (1202.)] " John, by the Grace of God, &c. Know ye, that we have granted that all our Tinners of Cornwall and Devon be free and quit of pleas of natives while they work for the advantage of our ferm or of our new rent, because the tinners are of our own demesnes, and that

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they be free and quit without the disturbance of any one to dig tin, and turves in order to found tin wheresoever in the moors and fees of the Bishops, Abbots, and Earls as they have been used and accustomed, and to buy wood for the founding of the tin without waste in the regards of the forests, and to divert waters at the works in the stannaries, as according to ancient custom they have been used.   And that they be quit in our towns where they dwell of aids and talages while they are in our service.   Witness William, Earl of Surrey, &c.   Given, &c., on the 29th October, in the third year of our reign."

   It is sufficiently clear from these documents, that this mineral produce of the soil of the county had been part of the king's demesnes from the earliest period, and that the Crown by virtue of its dominion and authority over the soil, had given power to the tinners to enter upon the moors or wastes of the Lords and barons to dig for tin and find turf for its manufacture.

It is conceived that such rights in the Crown are irreconcileable with the alleged independence or quasi independence of the county from the sovereignty of England, or with the possession by the ancient Earls of Cornwall of the soil of the county.

Another description of evidence, showing the interest and authority of the Crown in and over the waste lands of this county, consists in its title to and possession of the ancient forests once existing there.

It will be sufficient to show that this prerogative right existed in the King throughout the county of Cornwall as much as in any other county of the kingdom, by a charter of King John, disafforesting the whole county, of which the following is the substance:-

   [22d March. 5th John (1204).]   "John, by the grace of God, &c.   Know ye, that we have dis- afforested the whole county of Cornwall of all things which to forest or foresters pertain, except our two moors, called Faymoore and Gaundewre, with their appurtenances, and except two heaths, to wit, Kissebulloe and Warham, with their appurtenances, so that the whole county of Cornwall, and the men dwelling therein, and their heirs, be disafforested and free, and quit of us and our heirs for ever, of all things which to forest and foresters pertain, except in the two moors and heaths aforesaid, with their appurtenances. And we will that they take all manner of venison which they can obtain in the whole of Cornwall, without the aforesaid moors and heaths, with their appurtenances.   Witness G., Earl of Essex, the 22d day of March, in the 5th year of our reign."

   The moors and lands here excepted were afterwards disafforested by a charter of 22d April, 10th John (1210), wherein it is stated these lands were not part of the King's demesnes, but belonged to the knights and free tenants of the county.

   The extent of ground, subject to the forest laws in this county, as it is known to have been the case in the other western counties, was probably large, and must have been a part of the Crown's possessions from the Conquest to the time of the last-mentioned charter, during the existence of the several Earls of Cornwall between those periods, and the grounds of title in the King to the forests, and the beasts of chase and game within them, which he by his charter for ever relinquished, viz., his prerogative right to the soil, as well as his right to all bona vacantia, will not be overlooked in applying this evidence to the main question under discussion.

   The title and possessions of the Earldom of Cornwall were next enjoyed by Henry FitzCount, the eldest son of Reginald de Dunstanville, the preceding Earl ; but there was some doubt whether he was entitled to them by inheritance, on account, probably, of his alleged illegitimacy.

By the document referred to in the Duchy Statement (folio 5), viz., the record called the "Placitorum Abbreviatio" of the 3d John (1202), it would appear he had not then entered into possession, for the entry is merely that "Earl Reginald had the county of Cornwall and all things which to the lord the King pertained."

   The Earl Reginald here referred to was the father of Henry FitzCount, who died, as already stated, in the 21st Henry II. (1175).   It has been shown that he had a grant of the county.

By the following document, it will be seen that Henry FitzCount had a grant of the custody of the county, with the demesnes, which would oblige him

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to answer to the King's Exchequer for the profits and issues arising from them every year:-

   [l7th September. l7th John (1216)]   "The King to Robert de Cardinan : Know ye that we have committed to our beloved and faithful Henry Fitz Count the County of Cornwall, with the demesnes and their appurtenances, as in bailment until our land shall be in such a condition that we may be able to inquire by our faithful men whether the same county, with the appurtenances, ought to be held hereditarily of us or as our demesnes.   And if according to the inquisition which we shall cause to be made thereof, the same county ought to be held hereditarily of us, we will that, the same be so held of us. But otherwise we will retain the same as our demesne, to be disposed of at our pleasure.   And therefore we command you, that the same county and demesnes, with their appurtenances, without delay you deliver to the same Henry, but send to us one of your men in whom as in yourself ye may confide, who will tell you on our behalf with the letters patent, that you may deliver to him the castle of Launceston, the custody of which we likewise will to be delivered to him.    Witness ourself at Dover, the l7th day of September, in the l7th year of our reign."

[l8th September. l7th John (1216.)]    "The King to Robert de Cardinan, &c.    Know ye that we have committed to our beloved and faithful Henry Fitz Count the castle of Launceston, with the County of Cornwall, in custody of our bailment.   And, therefore, we command you that you deliver the aforesaid castle and county, with their appurtenances, to the aforesaid Henry, as Geoffrey the Monk shall tell you on our behalf.    Witness ourself at Dover, the l8th day of September, in the l7th year of our reign."

There is evidence on record of the King before making these grants having exercised certain acts of prerogative, especially with reference to the coasts and ports of the county ; but as they were before the grant of custody of the county it is not proposed to notice them.   After the last-mentioned period the following grant was made:-

   [11th June. 18th John (1217)]  " The King, &c'   Know ye that we have granted, and by this our present charter, confirmed to God and the church of St. Peter of Exeter, and our Venerable Father, the Bishop, &c. the tithe of the ferm of tin in our counties of Devon and Cornwall.   To hold to him and his successors, bishops, &c.  of us and our heirs in free pure, and perpetual alms.    Also we will that they for ever receive the aforesaid tithes in the same counties, without any impediment, &c., by the hands of those who should have the stannaries or custody of them &c.    In witness, &c., given at Corfe, the 11th day of June, in the l8th year of our reign."

In the 1st Hen. III. the Crown acknowledged this Earl's title to the possessions of his father ; for by letters patent of that year, with the consent of Walter, the Popes Legate, and William Earl Marshal, the King's guardian, he obtained a grant of the county, with all its appurtenances.   To hold as fully as Reginald Earl ot Cornwall held it, and that he was not to be disseized thereof but by the judgment of the King's Court.

Within four years afterwards this earl fell into disgrace, as it will appear by the following precept of the King:-

[27th April  4 Hen III. (1220)]   "The King to the earls, barons' knights, free tenants, and all his faithful men of the County of Cornwall, greeting: Know ye that Hy FitzCount lately coming into our Court hath departed therefrom without the licence of us or our Council, refusing to be obedient to our commands, as he had been enjoined.   And therefore we, firmly enjoining, command you, that hereafter you be in nowise attending or answering the same Henry.   In testimony whereof, &c.   Witness, &c., the 27th day of April in the 4th year of our reign."

The successor to Henry FitzCount in the enjoyment of the Earldom was Richard, the younger brother of the King, who also had the title of King of the Romans, and was subsequently crowned King of Almaine.

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  In Dugdale's Baronage (vol. i. 761.), under the head of "Earls of Cornwall," there is the following notice of this Earl:-

"Richard, a younger son of King John, had this title tempore Henry III.   In 9 Henry III. he had a grant of the custody of the county of Cornwall the shrievalty during the King's pleasure."

This eminent antiquary's authority is referred to in support of what has been previously suggested, that the grant of a county passed only certain ancient ferms and the profits arising from the jurisdiction of the county, described by him as "the shrievalty" because it was through that officer the issues and profits of the county were received."

The following is a translation of the grant, or rather mandate, last mentioned :-

  [13th February. 9 Hen. III. (1225.)]    " It is commanded to all men of the county of Cornwall, that they be attending and answering Richard, the brother of the Lord the King, in all things which pertain to the Lord the King in the county of Cornwall, to whom the Lord the King hath committed the same county, with all things which pertain to the Lord the King in the same county, to support himself in the service of the Lord the King so long as it shall please the Lord the King, saving to the Lord the King his homages and debts, which are due to him in the same county, and his ferms of the said county until Thursday next after Ash Wednesday in the 9th year. Witness, the King at Windsor, the l3th day of February in the same 9th year."

  Some light is thrown by this document on the nature of the issues passing under the grant of a county by the matters excepted, comprising rents or ferms then due to the King, as well as profits or fees of the homages of the new tenants or holders under the Crown, which, though due, had not then been satisfied, or it may be those homages which never passed with the county, being of the nature of  "homage ancestral" which will be hereafter mentioned.

  This grant of 9th Henry III. being a grant of custody only to the King's brother, was enlarged in the 15th year of the reign to a grant in fee, with the stannaries and mines, in the following terms :-

[9th August, 15 Hen. III. (1231.)]    "Henry, King, &c., greeting, know ye that we have given and granted, and by this our charter confirmed, to our beloved brother Richard, Earl of Poictou and Cornwall, all the county of of Cornwall with the, stannary of Cornwall, and all the mines and other appurtenances of the same county, and of the stannary aforesaid, to have and to hold of us and our heirs to the same earl and his heirs, doing therefore to us and our heirs the service of five knights' fees for all service and all custom, and all demand ; wherefore we will, &c., that the same earl and his heirs have and hold of us and our heirs the aforesaid county of Cornwall, with the aforesaid stannary and all mines and other appurtenances of the same county and stannary without any restraint, well and in peace, freely, quietly, and wholly by the aforesaid service as is aforesaid.   These being witnesses, &c. Given &c., the 10th day of August, in the 15th year, &c."

It might be expected that from this time when the King had made an absolute or apparent alienation to his own brother of the whole county, with the stannary of Cornwall and all the mines and other appurtenances of the county and stannary, the most liberal construction would have been put on the terms of the grant between such parties, and the fullest exercise allowed of all the privileges that could be enjoyed under it.

In these troubled times with such a feudatory as Richard Earl of Gloucester, and such a Sovereign as Henry III, we should be prepared to find the most Extensive claims asserted under, or under colour of such a grant as this, which Appeared to give every thing to the earl.

  There is, however, sufficient evidence on record to show that, even during the life of this earl, the Crown exercised its prerogatives throughout the county in various ways ; the following are instances :

19 Hen. III. (1225.)    The King made a grant of confirmation to the Priory of Tywardrith of donations made to the same priory.

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24 Hen. III. (1230.)    The King granted to Henry de Bodrigan the privilege of holding a market in Pendrun. 43 Hen. III (1259.)     The King granted to the Bishop of Exeter free warren and market and fair in Penryn.

And what is especially remarkable, considering the separate dominion of the county and sovereign rights within it, now claimed for the earl, the King, at the instance of Richard King of Almaine  (the then Earl of Cornwall himself), confirmed a grant he had made of a free borough market and fair in his town of Camelford.    The following is the substance of the king's confirmation:-

[12 June 44 Hen. III (1260.)]    "The king to the archbishops, &c.    Know ye that we at the instance of the illustrious King of Almaine, of our special grace have granted, and by this our present charter confirmed, for us and our heirs, that his town of Camelford in Cornwall, which the same King (of Almaine) by his charter hath lately made a free borough with a market every week on Friday, and a fair to continue for three days every year, &c.  remain a free borough with the aforesaid market, fair, and all liberties and free customs to such borough, market, and fair appertaining for ever.    These being witnesses, &c. Given by our hand at Westminster the 12th June, &c"

  In the next year the grant referred to in the under-mentioned charter was made by the Earl of Cornwall, and which the duchy statement (folio 5) thus speaks of:-"A grant was made by Richard Earl of Cornwall to the inhabitants of the county of the right to take sand from the sea shore to fertilize their lands, affording the strongest evidence that at the time of such grant the very species of property about which the present question has been raised, was dealt with as appertaining to the earldom."

The words "appertaining to the earldom" in this part of the duchy statement are a striking illustration of the fallacy which it is submitted pervades the whole statement, by assuming that all the successive earls took or claimed to take under the royal grants appertained to the earldom.    If the creation of Richard Earl of Cornwall had carried with it any territory or rights, why the first temporary grant?  Why the second grant in fee ?

[18th June  45 Hen. III. (1261.)]    "The King to the archbishops, &c.  greeting, whereas our most dear brother Richard, the illustrious King of the Romans, ever princely, granted for himself and his heirs for the common profit of the whole land of Cornwall, that all and singular the inhabitants of the same territory in all the lands of the same King and his men and also through the whole of Cornwall should have and take the sea sand without price.    And through the lands of the same King and his men and through the whole county of Cornwall might freely, peaceably, and without the contradiction of any one heap upon their lands, and through the whole of Cornwall carry the same sand, for the fertility of the same territory, by a reasonable road assigned or to be assigned to them.   So nevertheless that if the same King or those through or upon whose lands the aforesaid sand should happen to be heaped or carried should incur any loss by occasion of such heaping or road, they should be competently satisfied by a reasonable recompense of the same loss to be taxed by consideration of good and faithful men of the same territory, and by the steward of the same King for the time being, or they should previously agree with them upon a certain sum as in the charter of the aforesaid King hereupon made to the commonalty of the same territory which we have inspected, is more fully contained.   We, the said grant holding firm and accepted for us and our heirs, do grant and confirm the same as much as to us pertains as the aforesaid charter, of the same King our brother, reasonably witnesseth.   These being witnesses &c.   Given by the hand of Master Nicholas, Archdeacon of Ely, our chancellor at Guildford the 18th day of June."

  It may be inferred from the terms of the confirmation, that the Earl was considered to have exceeded his authority as on no other ground could it have been necessary for the secure exercise of this prerogative right that the confirmation charter of the King should have been obtained.

It is probable, moreover, that these charters were only a recognition of a previously existing custom or right, in the inhabitants of Cornwall, as it is obvious that neither the King nor the earl, nor both could have legally made

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such a grant de novo as to the lands of the other barons, knights, and land owners in the county.

  But, whatever was the extent of the rights of Richard Earl of Cornwall, it is clear they depended entirely on the language of the specific grant to him, and were not exercised by virtue of any sovereignty supposed to be annexed to or inherent in the earldom, and there are abundant instances during the continuance of this grant of the existence and exercise of the Royal Prerogatives by the Crown.

  The following grants of franchises were made by the Crown during the remainder of the reign of Henry III.

51 Hen. III. (1267.)   "The King granted to Henry de Pomeroy a fair in Tregony, and a fair in Bery."
Same year.    "The King granted to Roger Constantine, a market in Portheness."
52 Hen. III. (1268.)   "The King granted to Reginald de Ferrers a fair in Calwerton."
56 Hen. III. (1272.)   "The King granted to William Champernoun free warren in all his lands in the counties of Cornwall and Devon."

Earl Richard lived until the 56th Henry III. (1272), and it is during the period of his earldom, as well as that of his son and successor Edmund, comprising 64 years, that according to the duchy statement (folio 4), there were no dealings with the property in question by the Crown, in Cornwall, such as by grants of wastes, forests rights, fisheries, or the like, although subsequently to the decease of the latter earl, which happened in the 28th Edw. I. (1300), and which it is said deserves particular notice.   "Grants of royal minerals in Cornwall do appear to have been made by the Crown during the reigns of Edward I. and II. because there was no earl then in existence."

Doubtless during that period the grant to Earl Richard was in force and was respected, and therefore the following examples and illustrations of the extent of the King's rights during the same period are of the more importance as shewing the continued exercise of Royal Prerogative by the Crown.

In the 25th Hen. III. (1241) the King was answered of a thirtieth in the county of Cornwall amounting to 500 marks, which the collectors paid into the exchequer as appears by the great roll of the pipe of that year.
  In the 2d Edw. I. (1294) a commission having been issued to inquire into the rights and liberties of the King subtracted, and also into excesses of sheriffs eschcators, and other bailiffs of the King, juries of the different hundreds in the several counties of England made presentments and returns, which subsequently led to the issuing of writs of quo warranto against those who claimed royal liberties, that their title and right to them might be determined in the King's courts.

The presentments for this county refer to the grants which had been made by King Henry III. and King John of manors, lands, and liberties as well to the Earls of Cornwall as to other lords, and shew that the Crown had ever been the source of all authority and ownership of property and privilege there.

With respect to prerogative rights of the King encroached upon are found the following presentments :-

"Hundred of Frygarshire".
"The jury say that no one hath return or estreat of writs but the King, [or] plea of unlawful distress to be pleaded in the County Court before the sheriff. And that the Prior of Bodmin holds plea of unlawful distress, and hath gallows and the assize of bread and ale in the town of Bodmin, from [what] time and by what warrant they are ignorant."

"Hundred of Penwith".
"Of those who claim liberties.
  They say that John Dalet and the Prior of St. Nicholas, Lords of [Sully]  (Scilly) receive wreck of the sea in their islands, they know not by [whose] warrant.
Of those who have taken goods, &c.
  Also they say that John De Beaupre, while he was sheriff after the [??]    iter of the justices in Cornwall, took and carried away four casks of wine the storehouse of Duthene, of the wreck of the sea belonging to the Lord [the] King, and in the storehouse of Dregnal other four casks, and in the storehouse of Coverton two casks of wine, and thereof did his pleasure and which wine was appraised by the coroner, and delivered to the [s…]

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storehouses to be answered for before the justices.   Also they say that the coroner appraised six casks of wine of the goods of a certain unknown felon who has abjured the kingdom; and afterwards came the said John de Beaupre and took away the said wine and thereof did his pleasure ; also they say that Ely de Bray Havener, of Cornwall, took of wreck of the sea in the storehouse of the marshall of Alverton, to his own use, 2,000 herrings, price 3s., before they were appraised by the coroners of the Lord the King, &c."

[TGG note - the words 'storehouse(s)' in this section have been changed, by hand, to 'tithing(s)'. Also words above shown in [square brackets] are words which need to be checked against the original document]

"Hundred of Poudreshire".
"Also they say that the manors of Moreste, Tibeste, and Brevel were escheats of King Henry, father of the now King, by the death of Andrew de Vitri, and the same King Henry gave the said manors to Richard his brother, Earl of Cornwall, now 40 years past and upwards ; also they say that Edmund Earl of Cornwall and his bailiffs plead pleas of unlawful distress at Lowydyel (Lostwithiel), and have a gallows three years now past"

In the 6th Edward I. (1278,) a special commission issued, directing two of the King's justices to hear complaints made of various encroachments and usurpations committed by the Bishop of Exeter, not only on the rights of the Crown, but also on the privileges of the Earl of Cornwall.   The inquisitions made in pursuance of this commission, shew that the bishop considered the royal prerogatives throughout the county to be vested in him rather than in the King or earl.   In the proceedings which were instituted against the bishop on this occasion, the King's authority and prerogative alone in the county are recognized ; it is not, however, proposed to enter much further into them, as they would extend this summary to undue limits, but the two following entries seem to claim attention:

"Roll 2 dors. Earl of Cornwall.    The earl complains of the bishop that he and his ancestors having a certain passage beyond the water of Esse, Saltash) and receiving money from those crossing the same passage, his men having taken something from the bishop's men for crossing, were excommunicated, to the injury of the Crown of the Lord the King, and disinherison of the aforesaid earl and his damage of 5,000l.   The bishop is in mercy and to satisfy the earl his damages."

The other entry is as follows:

" The Earl of Cornwall complains against Walter, Bishop of Exeter, and his officials. And the attorney-general prosecutes against the said bishop that he hath usurped upon the Royalties of the kingdom, and the King, as well in trying lay causes as in taking the fealties and homages of divers men, and also bonds by his own proper right. To which the bishop answered.   And it was adjourned before the King to hear judgment, &c."

This dispute ended by an agreement being afterwards entered into between the earl and the bishop.

  This entry is extracted chiefly to notice the Observation made on these proceedings in the Duchy statement (fol. 5.) where it is said  "In 6 Edward I. in proceedings against the Bishop of Exeter that he had usurped upon the royalties of the kingdom and the King in Cornwall it was not on behalf of the King, but the earl."

The reverse seems to be the fact, as the earl really sued on behalf of the King for the royalties, in which, as respects jurisdiction, the earl had an interest.

In the 12th Edward I. (1290) an iter was held for this county by the King's justices, at which not only pleas between the inhabitants, amongst whom appeared as a suitor the Earl of Cornwall with other lords of the county, were determined, but on the Crown side presentments were made with respect to the King's prerogative rights and profits, some of which were claimed by lords of manors besides the earl, and without deriving title from any Earl of Cornwall, which it will be for the Duchy to reconcile with the alleged possession by the earls of the prerogative rights in the county.

The following entries are extracted from a vast number of similar present- ments at this iter in only a few of the hundreds, showing the profits of prerogative rights accounted for to the King, such as deodands, goods of felons and fugitives, and persons of felo de se and year day and waste.

12 Edw.I. (1284.) " Pleas of the crown before Solomon de Rochester and others justices itinerant, at Launceston, in the county of Cornwall, from the day of Easter in three weeks,

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  The hundred of Penwith comes by 12 jurors.    Maddock, the chaplain, riding in the tithing of Ludvon near the sea shore, fell from his horse, and was drowned, &c.   The price of the horse 6s. 8d., whereof the sheriff answers.
John de Gaudehome fell from a certain horse in the water of Trewall, and was drowned, &c.   The price of the horse 4s., whereof the sheriff answers.
The hundred of Poudreshire comes by 12 jurors.   Maret Wymsho hung himself in his house in the tithing of Polder, &c.   Judgment of felo de se ; chattels 3s. 7d., whereof the sheriff answers.
John de Tregors fell from his horse and broke his neck, &c. The price of the horse 4s., whereof the sheriff answers.
The hundred of Lyneswiche comes by twelve jurors. William de Chercheton fell from a certain waggon, &c., and immediately died. The price of the waggon and hay 2s.
The hundred of Tryggershire comes by twelve jurors.   Unknown malefactors by night entered the house of Emma de Roswyn, in the tithing of Berner, and there killed the same Emma.   Afterwards it is witnessed by the 12 that Hugh de Semere was taken for the aforesaid death and hanged before the justices, &c.   They had no chattels, but the aforesaid Hugh had land, whereof the year and waste are worth 2s., whereof the sheriff answers.
Afterwards it is witnessed that the aforesaid Hugh was hanged now six years past, whereof for half the time the lands of the same yielded six shillings, which the sheriff received.   Therefore let him answer thereof.
The hundred of Pydreshire comes by twelve jurors.   William, the chaplain of Elwater, fell into a certain water in the tithing of Ponton, and both he and his horse, were drowned.  The price of the horse's hide, 16d., whereof the sheriff answers.
The hundred of Kerrier comes by twelve jurors.   Nicholas of Marthen and Ralph of the same were drowned in a certain boat in the tithing of Measter. &c.   The price of the boat, 2s., whereof the sheriff answers.
Vincent Winnow wilfully drowned himself in the water of Porthewye, &c.; judgment of felo de se, his chattels, 33s. 8d., whereof the sheriff" answers.
The hundred of Westweveleshire comes by 12 jurors.   Two presentments of death by drowning, and the sheriff answers of the value of the coats. John Franceys and John de Trevenedek went together in a boat in the water of Fowey, and John de Trevenedek fell from the boat and was drowned ; the price of the boat, 2s. &c., and because Bernard de Brodbran, the coroner and the 12 concealed the aforesaid deodand, therefore they are in mercy and left to the judgment of the Crown.
Malina de Polruan killed Walter, her husband, in his house of Polruan, and in the tithing of Fawton, and taken and led to the prison of Launceston, and therefore the justices sentenced her to be burnt ; chattels, 1d., whereof the sheriff answers.
The hundred of East Wyveleshire comes by twelve jurors.    Walter Malekyn in a frenzy killed himself in the tithing of Innesworth, &c; judgment of felo de se, his chattels, 5s. 6d., whereof the sheriff answers.
Indictment against Henry le Marshal and Richard Joye, for the death of Gunelda, the wife of the aforesaid Henry, who defend the death, and put themselves on the country.   The jurors say that they are guilty, &c., and that the chattels of the aforesaid Henry are worth 56s. 2d., whereof the sheriff answers.
The same hath lands, whereof the year and waste are 11s. 6d., whereof the sheriff answers, 'and Richard had no chattels.' "

It has been already said that at these iters the rights of the Crown and of those claiming royal liberties were enquired into.   A few of the pro- ceedings of this description at the iter of 12th Edward I. are subjoined in as abridged form as possible, as they seem to throw too much light on the source and nature of prerogative rights viewed in connexion with the Crown and the earl to be passed over.

"The Hundred of (      ).
  [12 Edw.1(1284.)]   Of fees.    The jury say that the ancestors of Robert Fitz Walter held a third part of the manor of Menhelly, and a sixth part of the town of Truro, and six marks of rent with the appurtenances in St. Ives

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in capite of the Lord the King by the service of one knight's fee, and Robert Fitz Walter now holds the same manor, with all others who hold in the same county in capite of the Earl of Cornwall, and they knew not in what manner his homage has been alienated.   And Robert comes and saith that his ancestors held the aforesaid tenements as is aforesaid.   That after the death of Walter, his father, he was within age, and Richard Earl of Cornwall held the same land in the name of wardship.   And after the death of the aforesaid Richard, Earl Edmond, the earl that now is, held the same unto the full age of the same Robert.   And when he came of age the aforesaid earl did not permit him to enter the land aforesaid until he did homage to him thereof.
And because Walter, the father of the aforesaid Robert, died in the homage Of the Lord Henry the father of the Lord the now King, and the aforesaid Robert did homage to the aforesaid Earl of the tenements aforesaid without the licence and will of the Lord the King,   Therefore let the aforesaid land be taken into the hands of the Lord the King, so that the sheriff answer of the issues until the Lord the King shall otherwise command thereof ; And the aforesaid third part of Menhelly is worth in all issues 23l. &c."

Thus distinctly showing that the licence of the King was deemed requisite to the performance of homage to the earl.

The jury present that John de Rivers, the elder, held the manor of Lantyel in the hundred of Poudreshire, and a moiety of the town of Truro, and in the hundred of Keyrer, the moiety of Roswy and the manor of Treglast in the hundred of (   ) &c. in capite of the cLord the King, and John de Rivers the younger now holds the same manors, and they know not by what warrant.
And John was present, and saith that John de Rivers his father gave him the aforesaid manors to be holden of the Lord the King in capite.   And that he entered the same tenements with the assent and will of the same Lord the King.   And hereupon comes Edmund Earl of Cornwall, and saith that the aforesaid tenements ought to be holden of him because the Lord King Henry father of the Lord the now King gave to Earl Richard his father all the county of Cornwall, with all fees within the same county, and this fee was assigned to him, together with other fees of this county.
And John saith that one Richard de Rivers held the aforesaid tenements in capite of the Lord King Henry the father of the Lord the now King, and died in the homage of the aforesaid King Henry.   And after the death of the aforesaid Richard, his grandfather, John, his father, was within age, and in the wardship of the same King Henry.   And the same King gave the same wardship to Phillip Basset, with the tenements aforesaid, until the lawful age of the same John.   And which Philip held the same tenements in the name of wardship of the same John, in the time of Earl Richard ; and   afterwards the same King Henry gave the county aforesaid to the same Richard, his brother ; and he saith that when the aforesaid John, his father, came of age he did homage thereupon to the aforesaid King Henry.   And afterwards with the will and consent of the same Lord King Henry the aforesaid John his father enfeoffed him of the same tenements to be holden in capite of the Lord of the King ; and the aforesaid John his father was never put out of the homage of the aforesaid Lord the King ; and this he prays may be verified by the rolls of the chancery of the Lord the King ; and likewise prays that he withdraw not from the homage of the aforesaid Lord the King ; therefore a day is given to them from the day of St. Michael in one month before the Lord the King wheresoever, &c.   And in the meantime let the rolls of the chancery be searched, and the sheriff and bailiff of the earl are desired that in the meantime they permit the aforesaid John to have peace.
Alice de le Hurne claims to have assize of bread and ale in the manor of Covcrton. and by reason of her bailiwick takes 2d. for the amendment of the assize broken throughout all the hundred, and the Earl of Cornwall takes the third penny.   And the said Alice hath in the same manor stocks, tumbrels, gallows, estray, &c. nbsp; They know not by what warrant.   And Alice comes and saith that she holds the manor aforesaid with the liberties aforesaid of the gift of Robert formerly Earl of Gloucester, to whom the aforesaid manor with the hundred aforesaid belonged, who gave the same with the bailiwick aforesaid and the liberties aforesaid to one Robert Pincerne, her ancestor, by his charter, which she produces, and which witnesseth the aforesaid donation ; also she produces the charter of King Henry the II. the cousin of the Lord the now King, which witnesseth that the same King Henry granted and confirmed to

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Richard Pincerne the manor of Coverton, which Robert son of the Earl of Gloucester his kinsman gave to him for his service, and that he and his heirs should hold the same with all free customs and acquittances appertaining, to the same manor in all things and in all places, to be holden of the same earl and his heirs as freely,  &c.   And thereupon comes William de Gyselham, who sues for the Lord the King, and saith that although the aforesaid earl gave the aforesaid manor with the hundred aforesaid, the same shews nothing of any gift of any King, to whom the donation of a hundred and such royal liberty pertains.   Whereupon he prays judgment.   Afterwards it is found by the confirmation of the aforesaid King Henry that the same King Henry confirmed the aforesaid donation of the aforesaid manor, with the liberties aforesaid, in which is contained the hundred aforesaid.   It is found by the jurors of this hundred, and the knights hereunto elected say upon their oath that the aforesaid Alice and all her ancestors from the time of the making of the donation aforesaid have held the aforesaid hundred together with the manors aforesaid.    And the earl being present saith that the third part of the profit of the same hundred pertains to him as above said.   Therefore let the aforesaid Alice go thereof without day with the manor, hundred, and liberties aforesaid, saving the right of the Lord the King when he will to speak thereof, &c.
Edmund Earl of Cornwall claims to have all the county of Cornwall of the Lord the King in chief, with the hundreds, and all manner of pleas of counties and hundreds view of frankpledge, throughout the whole county, and all money touching view and sheriffs' tourn twice in the year, with all things touching the said tourn, infangenethef, utfangenethef, waif, assize of bread and ale, fairs, markets, warrens, in divers places and in divers manors of the same county, (that is to say,)  Denkeved,  a market every week on Thursday, and a fair yearly on the day of Pentecost, and on the two follow- ing days, at Camelford, one fair by the year, to wit, on the eve and day &c.,  and a market there on Friday every week and at Lostwythyl & fair and market, and at Lyskyret (Liskeard) a fair and market, and another fair at the chapel of the blessed Mary there, and at Esse (Saltash) a market and fair, and at Hellstowe a market and fair, and at Tintagel a market and fair, and in his manors of Trematon, Leskyret, Helston, and Clymeslend, he claims to have warren :   Also he claims to have chattels of felons throughout the whole county, prisage of wines, (that is to say,) one cask before and one behind the mast, and the drying of fish through the whole county, and to hold pleas of mesne lord without writ, and mines of tin and other metals through "the whole county, "together with pleas appertaining to tin; and likewise he claims to have the office of coroner through the whole county, so that no escheator of the Lord the King intrude himself to do anything belonging to an escheator in the county aforesaid ; and likewise he claims to have wreck of the sea through the whole, county, and all these things he saith he hath, and holds in the same state in which Richard his father held and possessed the same in the form in which he now claims them, and saith that as well he as Richard his father, from the time when the Lord King Henry, the father of the Lord now King gave to his same father   the castle of Donkeved, with the whole county of Cornwall, by his charter, &c.,  they have fully used the aforesaid liberties without occupying on the Lord the King ; and hereupon the Lord the King directed his writ to his justices in these words, 'Edward, by the grace of God, &c., to his beloved and faithful Solomon de Rochester and his companions, justices itenerant of the county of Cornwall.' Greeting, we command you of our special grace that you permit our beloved and faithful cousin, Edmund, Earl of Cornwall, to use and enjoy the liberties which he and Richard, Earl of Cornwall, his father, always hitherto have used, so far as pertains to us at your iter aforesaid. Witness ourself at Carnarvon, the 18th day of April, in the 12th year of our reign.'   And hereupon comes William de Gyselham, who sues for the Lord the King, together with Thomas de Saunford, sub-escheater of the Lord the King and as to wreck of the sea and the chattels of felons, saith that the Lord the King is seized of the same, and the ancestors of the same Lord the King always received the issues and profits from all the justices itinerant in the said county, and the sheriffs of the same county have answered of the same at the Exchequer of the Lord the King.   This he prays to verify by the record of the rolls of the Exchequer of the Lord the King; and likewise by the rolls of

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the last iter, and because it is found by the rolls of the last iter of G. de Preston and his companions, the last justices itenerant here, that John de Beaupre, the then sheriff, was charged of all the chattels of felons and fugitives, and all wrecks of the sea presented before, the same justices, and afterwards adjudged by the same justices to the Lord the King ; he was charged to answer thereof to the Lord the King, and now it is found here by the coroner and the knights of the county, that all manner of wreck which, after the last iter come anywhere soever in the same county by the view of the coroner of the Lord the King of the same county was appraised according to the form of the statute thereof made, and by the same coroners in the tithings in which the wreck aforesaid was found was delivered to be kept to the use of the Lord the King until the arrival of , the justices, &c.   Therefore let the aforesaid chattels and wreck remain to the Lord the King until the Lord the King shall otherwise command thereof ; and the sheriff is charged to answer thereof to the Lord the King, &c.   And as to the escheatorship, the aforesaid [Thomas] de Saunford saith, that the stewards and bailiffs do not permit him to enter to perform his office in the same county, nor the same stewards and bailiffs care to admit any writ of the Lord the King concerning the escheatory to the no small damage and grievance of the Lord the King.    And the aforesaid Earl saith that, the office of escheator does not pertain to any escheator, because he saith that the Lord King John granted to him and his heirs, to the men of the same county the custody of the ports and escheats in the said county, so that no other should intrude himself concerning the custody, of the aforesaid ports and escheats except the sheriff of the same county, and the Lord King Henry, the father of the Lord the King afterwards confirmed the same deed and he produces the Charter of the same King John, of the grant aforesaid which witnesseth that he granted to them, &c., in these words :    'Also we have granted to them that the sheriff of the county have the custody of the ports and the escheats, and no others than the sheriff, as in the time of King Henry our father, he was accustomed to have ;"   whereupon he saith that from the time of the said Lord King John the sheriff of the county had the custody of the escheats, and no other foreign escheator of the Lord the King."

It is manifest from this claim and the proceedings under it as well as from all the previous proceedings, that the sole foundation of the right of the then Earl Edmund and his father, was the grant by the King to the Earl Richard, which was alleged to have been a grant of the whole county of Cornwall, as a Lordship of which the earl was the King's tenant, in capite, and that there was no suggestion of any peculiarity in the status of Cornwall or of the Earls of Cornwall, which was to affect the ordinary legal construction of such a grant to a tenant in capite of the Crown.
It is also remarkable with regard to the escheatorship that the right of the sheriff is pleaded as based on a royal charter from King John, not to the earl or lord, but in favour of the men of the county.

By the rolls of proceedings had in the Superior Courts at Westminster of the reign of Edw. I it is shewn that the earl was a suitor, like other persons as he was at the iters of the county.

  "Pleas before the Lord the King at Westminster, in the 14th Edw. I. (1286) Cornwall.   It was presented heretofore at the iter of the justices of the last iter in the County of Cornwall, that the Lord the King ought to have wreck of the sea in the county of Cornwall, and which wreck Edmund Earl of Cornwall now holds, who comes and saith that one Richard his father died seized thereof, and prays judgment if he ought thereupon to answer without the writ of the Lord the King whether his father died seized thereof.
It is said (by the justices) to the same earl that he go thereof without day until the Lord the King by his writ will declare against him thereof."

The duchy statement (folio 5) thus observes on these proceedings:

" By charter granted to Earl Richard King of the Romans no mention is made of the prerogative right to wreck in Cornwall, and it appears that, tempore Edw. I. the Crown disputed the title of Earl Edmund to this right, and proceedings were taken against the earl for this primá facie prerogative right, and which is believed to be the last claim by the Crown as regards Cornwall.   The result entirely supports the duchy view, for the right was adjudged to be in the earl throughout Cornwall."

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  By these proceedings it appears that at the preceding iter, namely, that of the 12th Edw. I., the King was answered throughout the county for these profits ; but this right having been claimed by the earl the question was referred to the King's Court, in which there was no adjudication as to his title, but a decision that he was not required to support his title unless called upon by the King's Writ.
Nothing in truth was decided except as to the form of the proceedings.
It does not appear that anything further was done on the subject.

  Nothing is said or appears from which any conclusion can be drawn as to the grounds on which the claim to the franchise or the claim to the prisage of wine was then based except  this, which is especially deserving of notice, that in the original claim of Earl Edmund before set out, it is put as having been enjoyed  "by him and his father" from the time when King Henry gave to his same father the Castle of Denkeved with the whole county of Cornwall.
Whether the claim was well or at all founded, or how far it would then or would now be sustained in the Courts of Westminster, is a question which the officers of the Crown do not discuss, being, as they conceive, wholly irrelevant to the real question.

Earl Edmund was the last earl that held the county, together with the demesnes and mines in fee.
  Some important proceedings relating to the possessions of the county took place in the 30th Edw. I. (1302), two years after the death of Earl Edmund, and when the possessions which had been held by him had reverted for want of heirs to the Crown.  

The proceedings in question enter into the original title of most of the franchises held by the principal lords and owners of lands long prior to the 30th Edw. I., and will show from whom, whether the Crown, or the earls, these franchises comprising many prerogative rights were derived, in considering which it will not be forgotten that the earldom was full from the 15th of Hen. III. to the 28th of Edw. I.

The following are extracts from some of these proceedings

" Pleas of Juries and Assizes, and of the Crown before John de Berewyk [and others], justices itinerant at Launceston in the county of Cornwall, in eight days of Saint Michael, in the 30th year of King Edward son of King Henry "30 Edw. I.  (1302)."  William de Botereaux was summoned to answer the Lord the King, by what warrant he claimed, (amongst other liberties,) infangonethef, view of frankpledge, assize of bread and ale in his manor of Penhel, a market and fair in his manor of Lananton, free warren in all his demesnes of Trenedhen, Trewarnill, and Lananton, and assize of bread and ale, and a fair in his manor of Boterel's castle, &c."

William de Botereaux pleads a charter of the then King, and which has been found to be of the 24th year of his reign, for market, fair, and free warren, and which he produced, and judgment is given for him.
A similar writ was issued at the suit of the King against the Bishop of Exeter for claiming infangenethef, assize ; of bread and ale, and taking estrays and waifs in his manors of Wictone, St. Germains, and Potten ; also of assize and estrays in his manors of Tregaer and Penryn ; also for claiming free borough market fair and free warren in all his demesne lands in the county.
The bishop pleads as to market fair and free warren, a charter of King Hen. III., which was granted in the 43rd year of that King to his church, and his right is allowed by the attorney-general.
The Abbot of Beauleau was also summoned to answer the King for the exercise of various liberties, namely, "acquittance of suit of shires and hundreds sheriffs, tourns, and to have soc and sac toll and theam, and infangenethef, in the town of St. Kaneran in Cornwall, and also to have chattels, fugitives, and persons condemned, and amerciaments of his own men, and view of frankpledge and acquittance of toll throughout England."
The abbot pleads a charter of King John, and a confirmation thereof by King Hen. III. the former being dated in the (   ) year of King John to his predecessors, which grants were allowed, and judgment was given for him.
A similar writ of quo warranto was issued against the Abbot of Clive, for claiming view of frankpledge, assize of bread and pillory waifs, infangenethef, &c. in Pokewell and Tregalston, and wreck of the sea in all his demesne lands in the same towns,

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The Abbot pleads a grant of King Hen. III. to his predecessors, which is of the 11th year of that reign.   It was allowed and judgment given accordingly.
Henry Tyas was summoned to answer the King by what warrant he held a fair and market in the town of Mousehole and free warren in Alwarton.
He pleads a grant of the then King of the same liberties which was made in his 28th year. It was allowed and judgment accordingly.
Henry de Pomeroy was also summoned to show by what warrant he held a market and fair, also toll and assize of bread and ale in Tregune.
He pleads a charter of King Hen. III. to his father of the same liberties, dated in the 51st year of that King, which is allowed and judgment given in his favour.
John de Arundel was also summoned by the King to show why he claimed market and fair in the manor of Modeshole.
He pleads title by inheritance to the manor from Ralph his ancestor, who had purchased from the heir of Walter de Raleigh, and to which Walter King Hen. III. by his charter had granted the liberties aforesaid, which is found to be dated in the 23rd year of his reign.
The attorney-general who sued for the King saith, that when King Hen. III. granted liberties to any one he granted them to him and his heirs ; that as the same John claims the manor by hereditary right from Ralph his ancestor, who bought the same from Walter, de Raleigh (to whom King Hen. III. granted the said liberties) as a stranger.   He prays judgment if such royal liberties purchased in that manner can be used without a special grant thereof to him or his ancestors by the Lord the now King or either of his progenitors Kings of England.   Therefore it is considered that the aforesaid John go thereof without any day saving the right of the Lord the King when he will speak thereof.
The charter here pleaded was made in the 23rd Hen. III.
Reginald de Ferrers was also summoned to show the ground of his title to a market and fair in his manor of Calerton.
He pleads a charter of King Hen. III., granting the same liberties to him which was made in the 52d year of that King.   It was allowed saving the right of the King.
The Prior of Bodmin was also summoned to show by what right he claimed to have gallows, pillory, soc and sac, thol and theam, view of frankpledge, assize of bread, &c. in Bodmin, and also to have waif throughout the whole hundred of Powdeshire, assize of bread, &c., pleas of unlawful distress in Alderstowe, and also a free fishery through the water of Aleyn and Egle, &c.
The abbot pleads a prescriptive title to these liberties, and the jury find in his favour.
The Attorney-General however seems to have traversed to this finding, as appears by the following entry on the record:-
And John de Mutford, who sues for the King, saith that this plea touches a certain right annexed to the Crown of the Lord the King, and hath its commencement within memory and not from time, whereof the memory of man is not to the contrary, &c.   And he saith that the prior hath not return of writs and prays judgment.
William de Bodrigan was also summoned to show by what warrant he claimed a market and fair in the town of Loo, and view of frankpledge, tumbrel, and pillory, and assize of bread and beer there.
He pleads possession of the same for the term of his life of the inheritance of Henry de Bodrigan, who appears and voucheth the same ; it is pleaded also that the same Henry was summoned at the preceding iter to show his title to the same liberties, and that he then produced a grant of King Henry III. to one Henry de Bodrigan, his great grandfather, which was made in the 21st year of that King, of the market and fair.   These privileges were thereupon allowed to him.
Thomas de Pridyas was also summoned to show by what warrant he claimed to have soc and sac, thol and theam, infangenethef and view of frankpledge, assize and a market and fair in his manor of Truru, and that his burgesses of Truru should not plead in the hundred court or in the county court, and that they be quit of giving toll throughout Cornwall at fairs and markets and other immunities.

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The proceedings under this writ of quo warranto are of some length, as there were certain joint lords of the manor who were summoned with Thomas de Pridyas, and their descents are set out.
In respect of the liberties and immunities claimed for the burgesses of Truro, the charter of Reginald Earl of Cornwall, conferring the same, already noticed in page 10 of these observations, is pleaded and produced, which it is stated in the plea was confirmed by charters of King Henry III. and of Edward I., both of which were produced and judgment passed against the Crown.   The grant of confirmation by Edward I. was made in the 13th year of his reign.
Several other writs were issued against lords of liberties in the county which are not noticed, as a title by prescription was pleaded in support of them, which plea, although it is grounded on a presumed grant from the Crown to a former lord or owner, of the franchises, would not show distinctly the time when the grants were made, and that they bore date while the Earls of Cornwall held their possessions, which the duchy statement (folio 4) appears to consider alone conclusive.

  It thus appears that during the judicial investigation which was made at a time when all the rights of the Earl of Cornwall were vested in the King himself, into the titles of the principal lords of manors and owners of liberties throughout the county of Cornwall, all those alluded to are found to take their origin from the Crown as the source of prerogative rights, and not one from any Earl of Cornwall.   The various grants from the Crown produced on this occasion, or most of them, were made during the existence of Richard and Edmund, Earls of Cornwall, and furnish, it is conceived, a conclusive answer to the duchy statement (folio 4.) that from 19 Hen. III. (1235) to 27 Edw. I. (1299) during the times of Earls Richard and Edmund, the Crown made no grants of jura regalia in this county.

It is also important to observe that these writs of quo warranto were brought in the name of the King as King and for encroachments on His Royal Prerogatives, and not in right of any Earldom, of Cornwall, or as usurpations on the prerogative rights of the earldom, which would have been the form of the writ if any such rights pertained to the earldom as a county palatine, whether this honor were in possession of an earl or of the Crown by abeyance.

There is one instance, indeed, of an Earl having conferred by charter some immunities, but it has been shewn the grant in question was not allowed by the court without proof of its having been sanctioned and confirmed by the Crown.

On the question of the royal confirmations of Earl Reginald's charter just referred to, the duchy statement observes (folio 5.), "that the charter granted by the Earls, were recognised by the Crown as Royal Charters, and were made the subject of lnspeximus and Confirmations as in cases of Crown charters.- That this course was exactly adopted as to charters granted by earls palatine, see inspeximus charter of 8th December, 28 Hen. III., reciting and confirming a charter of Ranulph, Earl of Chester, and that it was remarkable that in both cases an Earl of Cornwall and an Earl of Chester were in existence at the period of the confirmations taking place."

  The remark, perhaps, may be allowed here, that this course, viz., of confirmation was also exactly adopted as to charters by earls not Palatinate, and if it so happened that the Crown confirmed a charter of the Earl Palatinate of Chester during the life of the latter, it is conceived that such an act of the Crown was considered necessary to give validity to an excessive exercise of the power of the Palatinate.   In the case of the Earl of Cornwall who clearly was not an earl palatine, it is impossible to concur in the Duchy statement, and view this act of the Crown as proof of the earl's sovereignty.   On the contrary, it can only be taken as a proof of his dependance and subjection to the Crown, as much as other lords holding of it, whose charters to their tenants it was necessary should receive the sanction of the Crown to give them due effect and operation.   It has been already shown that the charter of. Reginald de Valletort to his burgesses of Saltash of certain liberties and immunities, received the royal approval and confirmation.   But in addition to this answer to the Duchy statement on this point, it will be apparent, that if the Crown's confirmation of a charter is to give a royal character to the charter confirmed, there would be no limit to such insignia of the possession of

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prerogative rights, for nothing was more common than for the Crown to confirm the inspeximus grants made by private founders and donors to corporations, religious houses, and other bodies.

  Further acts of the Crown, during the existence of the last Earl Edmund, shewing its retention and exercise of prerogative rights in this county, can be referred to, of which the following are instances.

"14 Edw. 1. (1286.)   The King granted to Oliver de Denham free warren in his demesne lands of Cardiman and Botardell.
20 Edw. I  (1292)   The King granted to Philip D'Aubeney power to hold market and fair in his manor of Pulrinan.
21 Edw. I  (1293)   In this year a writ was issued to the sheriff of Cornwall to enquire whether the profits of year day and waste of land in Trenoson, belonging to one Henry Peers of Trenoson aforesaid, convicted and executed for felony, had been answered for to the King.  The inquisition found, that the said Henry Peers had been convicted of felony before the justices at Launceston, and that he possessed certain freehold lands of Cornish measure of which the year day and waste belonged to the King, and were worth 3s., whereof the tithing of Wyttleton was bound to answer before the justices itinerant.   And the jury found that the aforesaid Henry Peers held the same of Wm. Wyse the younger.   And that the aforesaid tithing then had the lands.
24 Edw. 1. (1296)   The King granted to William, son of William Botereux a market in Nante, and the franchise of free warren in Nante and Trevylhan.
25 Edw. I. (1297.)   In this year, a commission issued to Gilbert de Knovell and others, to enquire, in conjunction with the Sheriff of Cornwall, if certain persons particularly mentioned had acted contrary to the form of the King's proclamation in the county, with respect to wool, and a return was accordingly made.

The most important document in the history of the possessions of the Earls of Cornwall (if any document anterior to the creation of the duchy itself is really of any weight, or admissible in the construction of the grants to the latter), is the inquisitio post mortem, taken on the death of Earl Edmund.

At that time, everything that Earl Edmund died seized, or possessed of, was vested in the Crown, so that the officers of the Crown could by no possi- bility have had any motive for misstating, or understating what the possessions and rights of Earl Edmund were.

By the inquisition (29th Edw. I. c. 303.), it is found that he

"held in his demesne, as of fee, on the day on which he died, the castles, manors, and tenements underwritten, that is to say, &c.,. and the pleas of the county of Cornwall, with the hundreds of Petershire, Padershire, Tregershire, Lisneuyth, Stratton, Estinestshire, Westmenelshire, Kerner, and the third part of the hundred ofPenwith, with the issues of mines, of tin, wreck of the sea, the prisage of wine, with the fee farms underwritten, in the county aforesaid, of the Lord the King, in capite by the service of two knights' fees."

  It is wholly immaterial now to enquire whether the inquisitio post mortem was accurate or inaccurate, or to enquire whether Earl Edmund had by good title all that was there enumerated, or whether he had not, by good or some title, more.   The King having then every thing in him, either in his previous sovereign right, or by escheat on the death of Earl Edmund, this inquisitio post mortem is conclusive as to what was then believed and taken to be the real extent and nature of the possessions of Earl Edmund ; and if the subsequent royal grants are to be construed with reference to any supposed intentions on the part of the Crown to give all that Earl Edmund had, this inquisitio post mortem is conclusive as to what was represented to the royal grantors, and must have been believed by them to have been the extent, limit, and nature of Earl Edmund's rights.   Now there is no trace in the inquisitio post mortem of the possession of the county of Cornwall as a territory, or of the sea-shore, or of any territory of which, by any possible legal construction, the sea-shore could be considered as part or parcel.   The manors and lands, the jura regalia of which he was possessed are enumerated in minute detail, and no trace of his being possessed of any others or of his being possessed of those so enumerated as in right of a palatinate or quasi palatinate can be found.

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  The period in the history of the earldom, subsequent to the death of Earl Edmund, although it restored to the Crown every prerogative right and territorial possession in the county it might have previously alienated, and must be considered important in connexion with the claim of quasi regal and independent rights and possession in the Earls of Cornwall, is only thus cursorily alluded to in the duchy statement (folio 5).

"Subsequently to the death of Earl Edmund, without male issue, in 1299, the earldom was granted by Edw. II. to Piers Gaveston, but the vicissitudes of his earldom make it impossible to form any decided opinion as to the privileges bestowed on or rights exercised by him."

It is then observed.

"The next earl was John de Eltham, youngest brother of Edw. III. created 1331, who held the earldom for a few years only.  There are some grounds for supposing the grant to him had fewer jura regalia but this is not a matter of much importance, and as he was for nearly all his tenure of earldom under twenty-one, there is not likely to be any evidence bearing on the question."

The possessions which had been held by the last Earl of Cornwall were kept in the King's hands from the 28th Edw. I., when the earl died, until the end of this Kings reign.

  In the 1st Edw. II.  the county of Cornwall, with other possessions, was committed to the custody of John de la Hyde, by the following grant:-

"Trinity Commissions,  1 Edw. II. (1307.)   Concerning the county and stewardship of Cornwall
The King on the 25th day of June hath committed to Thomas de la Hyde the county of Cornwall with the appurtenances, and also the castles of   Tentagel, Restormal, and Trematon, and all lands and tenements, and the stannary and coinage in the same county, to be kept so long as the King shall please, so that of the issues thereof arising he answer at the King's exchequer.   And it is commanded to the archbishops, &c., that they be attending the same Thomas as sheriff of the county aforesaid and keeper of the castles, lands, and tenements of the stewardship, stannary and coinage aforesaid, in those things which to the office of sheriff and the same custody pertains.   Witnesses, &c."

The county with the King's demesnes stannaries, and mines as they had been enjoyed by the preceding earl, were granted in the same first year of Edw. II., to Piers de Gaveston, and subsequently regranted to him and Margaret his wife, who was the widow of Edmund, the late earl, in the 3d year of the same King on his return from banishment.

  The grant by this Sovereign to his favorite is in very comprehensive terms. It is a grant of  

"Our whole county of Cornwall, with the castles, towns, manors hundreds, demesnes, homages and services of free tenants, rents, villenages, villeins, with their chattels and sequels, knights' fees, advowsons of churches, abbies, priories, hospitals, chapels, fairs, markets, warrens, wrecks of the sea, and all other liberties, free customs, rights, and other things whatsoever, to the aforesaid county belonging; and also the office of the sheriff of the said county, the stannary and all mines of tin and lead, which were of Edmund, late Earl of Cornwall, in the county aforesaid ;"

and after some other specific grants of manors elsewhere the grant proceeds :

"And also all other castles, towns, manors, lands, and tenements, which the aforesaid Edmund had and held on the day of his death, &c., &c.

  [8 Aug. 3 Edw. II. (1310) ]  By this charter the King regrants the premises to the Earl and Margaret his wife, and the heirs of their bodies, in the same form as in the preceding grant.

That the King was not restricted by his grant of the county and other possessions in Cornwall from exercising his prerogative rights is shewn by the following grant.  

  "[25th Nov 1. 4th Edw. II. (1311]   The  King &c.,  know ye &c., that we have granted to John de Wylington,   free warren in all his demesne lands of Fourton and Lanteglos in our county of Cornwall, so that no one &c., witness, &c."

By the attainder of Piers de Gaveston, the county and other possessions of which he was seized were forfeited, and once more formed part of the possessions of the Crown and continued to be held by it until disposed of in the manner already mentioned.

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  The same King afterwards made a grant to his Queen Isabel, as follows: -

" [25th July. 11 Edw. II. (1319) ]    The king, &c.- Know ye that we have granted and assigned to Isabel, Queen of England, the shrievalty of Cornwall, and all our castles, towns, manors, lands, and tenements in the county of Cornwall, to hold according to the extent thereof made or to be made so long as it shall please us with hundreds, views of frankpledge, liberties, free customs, knights' fees, advowsons of churches, religious houses, and hospitals, and all other things to the aforesaid shrievalty, castles, towns, manors, lands, and tenements in anywise belonging as fully and entirely as we held the same in our hands, and that she shall have all fines, ransoms, amerciaments of all men and tenants of the same castles, towns, manors, lands, and tenements, and with the fees of the same, and the issues, forfeitures, and all other things which can pertain unto us of year, day, and waste, forfeitures and murders in whatsoever our courts ; the same men and tenants shall happen to be amerced as well before us and in our chancery as before our treasurer and barons of the Exchequer, &c., or that such issues, murders, forfeitures year, day, and waste shall happen to be adjudged, so that the same our consort by the hands of the sheriff of the county aforesaid may levy, receive, and have the fines, ransoms, and amerciaments of the men and tenants aforesaid, and the issues, forfeitures, and all things which can pertain to us of year, day, and waste, forfeitures, and murders in the same castles, towns, manors, lands, &c., and the fees of the same, &c., and that she shall have in the same castles, towns, manors, lands, and tenements, and in the fees of the same, the chattels of felons and fugitives, so that if any of her men or tenants for his offence ought to lose life, or member, or shall fly and refuse to abide judgment, or shall commit any other offence for which he ought to lose his chattels, wheresover justice ought thereupon to be done whether in the court of us or any other the same chattels shall belong to our aforesaid consort ; and it shall be lawful to our aforesaid consort or her ministers to take possession of the chattels aforesaid, and the same to retain to the use of our same consort without the hindrance or impediment of us or our sheriffs or other our bailiffs or ministers whomsoever, so nevertheless that the sheriff of the same county for the time being shall answer us at our Exchequer for our debts to be levied to our use in the same county so long as our said consort shall have the shrievalty, castles, towns, manors, lands, and tenements aforesaid.   In witness, &c.."

After the grant to the Queen the King continued to exercise Royal Prerogative in Cornwall.

  "[17th May. 15 Edw. II. (1322) ]    By writ of this date the King commanded Wm. de Redney and others keeper of all the castles which were of Thomas, Earl of Lancaster, and other rebels in the counties of Devon, and Cornwall seized into his hands by the forfeiture of the same traitors to make and return to the Exchequer the true value of the same possessions.
  [18 Edw. 11. (1325) ]    Commission to John de Wyrlyngworth, a goldsmith, to search in the mines of the counties of Devon and Cornwall for gold, and any found in the same to extract and reduce to a lump at the King's expense."

[20 Edw. II.  (1327)   A similar grant was made to Wm. de Somerhill in the two counties.

  The grant of the 10th October, 5 Edw. III. (1332), to the King's brother, John de Eltham, referred to in the Duchy statement (folio 5), is entitled to far more consideration than is given to it in the Duchy statement, folios 5 and 6.
It was the last creation of an Earl of Cornwall.   It was made by the same sovereign who created the duchy of Cornwall.   The recital in the grant is,

" Whereas we being lately willing to honour the person of our dear and faithful John de Eitham our most dear brother, have granted to him the name and honour of Earl of Cornwall.   And we have created him Earl of Cornwall and have girt him with a sword as earl of the same place.   And to the same earl we have subsequently given and granted twenty pounds of yearly rent under the name and honour of earl of Cornwall, out of the issues and profits of the county of Cornwall, to be taken by the hands of the steward or sheriff of Cornwall who for the time shall be."

And after reciting a grant of land  to the value of 2,000 marks by the year, by the service of two knights' fees, it proceeds :

"We, that our same brother may be able more suitably to sustain the state and honour of an earl, willing further to provide for him, have

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given and granted, and by this our charter have confirmed, to the same earl beyond the said twenty pounds yearly and 2,000 marks of land aforesaid, the castles, manors, lands and tenements underwritten,"

and then follows an enumeration of several manors and properties in Cornwall, Oxford, and Wilts and a further rent out of the issues of the county of Cornwall.   And the habendum is as follows :

"To have and to hold to the afore-named Earl and his heirs aforesaid, together with knights' fees, advowsons of churches, chapels abbies, priories, and religious houses and hospitals, and with markets, fairs, chaces, parks, warrens, fisheries, and all other liberties and free customs to the same castles, &c.  howsoever belonging of us and our heirs by the service of one knight's fee for all service for ever, in value one thousand marks of land by the year."

From this grant it is obvious that the earldom of Cornwall carried nothing with it whatever but what was specifically granted, and that the only thing granted or which passed under the name and honor of Earl of Cornwall was 20l. a year out of the issues and profits of the county of Cornwall.

It is further observable that this sovereign, in creating his own brother Earl of Cornwall, did not grant to him a single jus regale, and it is remarkable that in this case as in the subsequent creation of the Duchy, he was careful to enumerate in most clear and unambiguous terms, what it was should go for sustaining the state and honor.

It appears also most conclusively to dispose of the whole assumption in the duchy statement that the Earls of Cornwall had the right and property now in question, and that therefore it is improbable that it should not belong to the higher honor of Duke, and to prove that beyond all question the last earl had not that right of property.

It is clear, moreover, that Edward III., whether, in creating his brother Earl of Cornwall or his son Duke of Cornwall, was well satisfied that it depended wholly on his sovereign will, as expressed in the royal grants, what should or should not be enjoyed by Earl or Duke.

The great similarity in substance between the introductory part of this grant and the introductory part of the grant to the Black Prince moreover should not be overlooked.

During all the reigns of Edward I. and II., and up to the period of the creation of the Duchy, in the next reign, during the existence of the earls, and at other times, it appears, by the records of the Exchequer, that the King's escheator answered for the profits of lands held of the King in capite and remaining in the Kings hands by reason of wardships, and that large profits were continually received for the exercise of the prerogative in the county in various ways, such as for the issuing of writs and granting of writs of concord and other legal processes.   These writs were issued by the Crown in its own name, and it continued to act by its justices and other officers in the county as it ever had done before in all civil and criminal matters, collection of revenue, and in other ways ; but it is not proposed to state any further evidence on these points, as the fact of this exercise of the King's authority from the time of the Conquest, through all succeeding reigns, to the present time, is too manifest to be disputed.

The first proposition, therefore, contained in the summary at the close of the Duchy statement, viz., that Cornwall, like Wales, was at the time of the conquest, and subsequently treated in many respects, as distinct from England, is wholly untenable and without any colour of authority.
The second proposition, which is "that the county was held by the Earls of Cornwall with the rights and prerogatives of a county palatine, as far as regarded the seignory or territorial dominion,"  is thus shown to be equally without foundation.

The creation of the duchy is thus introduced in the statement (folio 6):-

" We now come to the period of 1337, when the earldom was augmented into a duchy, and here it may be remarked, that the difficulty before adverted to in the case of the earldom, namely, of showing, by recorded acts of ownership, the nature and extent of the rights, properties, and privileges of the early dukes, again presents itself.   Upon referring again to the originalia from the 11th Edw. III. (1337), when the duchy was created in favour of the Black Prince, who was only seven years of age, to the 25th Edw. III.

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 (1352), when he attained 21, we find entries of dealings with the property in Cornwall by the Crown.   But from the period of the Prince attaining 21 unto his death in 1376, a period of 25 years, there is no entry as regards Cornwall, except in 3Ist Edw. IIL (1358), where the Sheriff is ordered to deliver seizin to a certain party of the lands of an outlaw, being at a time ; when the duke was probably absent in France; and one in 47th Edw. III.  (1374), referring to a fine paid by the Prior of Bodmin for a confirmation by the Crown of a charter of Earl Reginald, containing a grant in mortmain, which would be nothing more than a license under the Act of 18th Edw. III. statute 3., cap. 3, to be held in mortmain."

  The exercise of prerogative by the King's grant of pardon in the 31st Edward III., after the three grants had been made to the Duke, and he had long attained his majority, and which grants according to the Duchy statement (fol. 7) had constituted the Duke quasi sovereign within the Duchy, and (fol 8.) had classed the county with counties palatine, and (fol. 10.) had conferred on the Duke not only Crown territorial possessions in Cornwall, but every prerogative right and source of revenue (except royal jurisdiction, &c.) can scarcely be accounted for on the ground of the Duke being then probably abroad for by the return made by the Duchy officers to the Record Commissioners in 1837, of the records and muniments of the Duchy, it is stated there is a perfect series of the ministers and receivers accounts of the Duchy possessions, and of charters grants, and other documents connected with the Duchy, from the period of its creation to that time.

It cannot be supposed, therefore, that the absence of the Duke would interfere with the regular exercise of the duties of his office, or that the grant of outlawry would not have been made by them in his name, as other acts must have been if this branch of the prerogative then pertained to the Duke.
Other similar grants, however, will be proved to have been made by the Crown in this reign.

The King's charter of confirmation of 47th Edw. III. (1374), of Earl Reginald's grant to the Prior of Bodmin, could only be to give validity to that of the earl ; it could not be a license in mortmain, as the statute of 27th Edw. I. stat. 2. provides for the King's license for a grant in mortmain to be made pursuant ; to the finding under a writ of ad quod damnum of the issuing of which in this particular instance there is no mention in the King's charter as is usual in all other cases.

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The next documents to be adverted to are the charters under which the Duchy exists and the Duke holds his rights.

  The language of these grants is wholly inconsistent with the theory of the Duchy that there was a distinct honour or seignory of the whole county intended to be kept alive, and that such distinct honor or seignory was intended to be granted to the Duke of Cornwall.    The grant proceeds from the King as King ; the prerogative rights granted are granted as prerogative rights vested in him, not jure comitatus, but jure coronæ.     

  If there had ever been a palatine or a quasi palatine county of Cornwall, the grant was not a grant of such county, with the additional style, title, and dignity of Duke, but was obviously a grant de novo of a new dignity, and of a new Duchy, wholly unconnected in point of legal title with any previously existing feud or dignity.

It is proposed to consider them in detail.     

  [17 March. 11 Edw. III. (1338) ]    By this charter, the King, by advice of Parliament, grants to Edward, Earl of Chester, the Black Prince, the title of Duke of Cornwall, and LEST IT SHOULD BE TURNED INTO DOUBT what or how  much the same duke or other dukes of the same place for the time being ought to have in the name of the said duchy, the King caused ALL THINGS IN KIND which he willed to pertain to the same to be inserted in His charter, the King then grants to his same son, under the name of Duke of Cornwall, the castles, manors, lands, tenements, and other things mentioned therein, to support the honor of the said duke, &c., that is to say, the shrievalty of Cornwall with the appurtenances, so that the aforesaid duke and other Dukes of Cornwall

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for the time being shall make and appoint the sheriff of the said county of Cornwall, at their pleasure, to execute and perform the office of sheriff there in manner as had hitherto been accustomed to be done without the hindrance of the King, or his heirs for ever."

The King then grants various castles, manors, boroughs, parks, fishery and other premises in the county, his prisage and customs of wine of the same county, also all the profits of his ports then to the Crown belonging, together with wreck of the sea, as well of whale and sturgeon and other fish which belonged to the King by reason of his prerogative as other things to wreck of the sea in anywise pertaining in all the said county, also the profits and emoluments of the County Court holden in the said county, and of hundreds and of courts of the same to the Crown belonging, also the stannary of the King in the same county, coinage thereof, with all issues and profits of the same, and also with the profits and perquisites of the Courts of Stannary and Mines in the same county.   To hold the same premises to the said Duke and the first begotten son of him and his heirs, Kings of England and Dukes of the said place in the kingdom of England, hereditarily to succeed, together with the knights' fees, advowsons of churches, abbies, priories, hospitals, chapels, and with the hundreds, fisheries, forests, chaces, parks woods, warrens, fairs, markets, liberties, free customs, wards, reliefs, escheats, and services of tenants, as well free as bond, and all other things to the aforesaid castles, boroughs, towns, manors, honors, stannaries, coinage, lands and tenements howsoever and wheresoever belonging or appertaining of us and our heirs for ever.

  It should be mentioned that there is also a clause in this charter that the aforesaid Duke and other Dukes of Cornwall for the time being should have free warren in all the demesne lands of the said castles and manors, and other places, so that those lands be not within the metes of the King's forests.

[18th March, 11 Edw. III. (1338)]    By this charter, also confirmed by Parliament, the King, for the further support of the Duke, grants to him and to future Dukes of Cornwall that they shall have return of all writs of the King and his heirs, and summonses and attachments of the Exchequer of the King and his heirs, as well of pleas of the Crown as of other pleas, in all their said lands and tenements and fees in the said county, so that no sheriff, bailiff, or minister of the King or his heirs should enter into the same lands or fees to execute the same writs or summonses, &c., unless in default of the said Duke.
He grants also the chattels of the men and tenants of the said Duke, being felons and fugitives in the whole county ; also fines for trespasses and other crimes whatsoever ; fines for licences to agree, and all amerciaments, ransoms, and forfeitures, year day, waste, and spoil, and all things which to the King and his heirs belonged concerning the same year day, waste, or spoil, and murders of all the men and tenants of the same Duke in the county, in any of the King's Courts at Westminster or elsewhere, fined, amerced, forfeited, or imposed, without let or hindrance of the King or his officers, so that the same Duke and other the Dukes aforesaid, such fines, amerciaments, ransoms, issues, and forfeitures of their men and tenants aforesaid, and all which to us and our heirs should belong concerning year day and waste or spoil and murders aforesaid, might levy, receive, and have, &c., without let or hindrance of us or our heirs, justices, escheators, &c.

  [3d January, 11 Edw. III. (1338)]     By this charter the King, more abundantly to provide for the same Duke his son, bestowed on him all fees, that is, lands held by knight's service of the Crown, not forming part of any of the lordships previously granted, which the King had in the same county, together with all wards, marriages, escheats, &c., which by reason of the same fees pertained to the King, or which he or his heirs would receive and have if the same fees had been retained in his hands, the King's prerogative in this behalf notwithstanding ; there is contained also in this grant a clause that the same Duke shall have return of all writs of the King and his heirs, and summonses of the Exchequer, attachments of pleas of the Crown, and other pleas in these fees, and that he shall have the chattels of the tenants of the same fees who are felons and fugitives, also fines for trespasses, licences to agree, amerciaments, and issues forfeited, year day, waste, and spoil of all the tenants of the same fees forfeited and adjudged in any of the King's Courts, and which fines, issues, year day, and waste, &c. it is declared would have belonged to the King or his heirs if they had not been granted to the aforesaid Duke.

[TGG note - The first and second charters were, in fact, 1337]

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  Neither of these charters contain any words which can by any possible construction be held to pass the foreshores and bed of the sea round Cornwall to the Duchy, nor any words sufficient to pass the land or territory of the county, or any land or territory of which the foreshore or bed of the sea can be alleged to be part or parcel.   The language singularly contrasts with that of the grants to Earl Richard and Piers Gaveston.   The word "county" was used in these grants, and had been made the foundation of claims accordingly.   In these grants to the Black Prince that word is carefully omitted, and for it is carefully substituted for the first time, in very precise and limited terms, "the shrievalty of the county ;" so that the Duke and his heirs might thereafter have the appointment of the sheriff.

It is impossible not to be struck by the remarkable difference between the grants of King Edward III. and those of his predecessors.

The terms of the grant to Richard Earl of Cornwall, under which he and his son Edmund claimed, and the extent of the rights exercised and claimed by them under that grant, must have been well known.  The language of the grant to Piers de Gaveston must have been well known ; and when we find that the words "all our county of Cornwall," and the general words "all other castles &c., which the aforesaid Edmund had," are omitted in the grant to the Black Prince, and couple that with the introductory words that every thing intended to pass was expressly inserted in the charter, it is scarcely possible to resist the conclusion that the general words were intentionally and studiously omitted, and that the introductory words were used for the express purpose of excluding all reference to the extent of the possessions or rights, of any former grantee.

In the Duchy Statement, after some observations on the first of the Duchy charters having been erroneously considered not to pass the county of Cornwall to the Duke, it proceeds to observe (folio 8.), "that if the first charter had used the expression of our whole Earldom of Cornwall under the name of a duchy," it would have been free from any of these objections, and this was the precise effect of it.   Instead of using this general expression it was thought more for the benefit of the duchy, and to prevent alienation of its lands, to specify by name and with a declaratory effect what had been the particular possession of the earldom. " The description agrees with the return of the possessions of the Earl Edmund in the inquisition on his death, and who may be said to have been the last per- manently and substantially enjoying the entire earldom.   The inquisition was taken in the 29th Edw. I. ; in it no mention is made of the earldom or county, but that Earl Edmund died seised of the whole county by inheritance from his father Earl Richard, the King of the Romans, in the sense in which the expression is used in the earlier charters, is clear, &c., &c."   As, therefore, it was not thought necessary to mention the county in the inquisition with the mines (although there is no doubt Earl Edmund died seised of all these), so it was thought equally unnecessary to mention them by name in the Duchy charter.

  The officers of the Crown have some difficulty in following this argument.    They cannot conceive how the grant or conveyance, omitting the words "county or earldom," can be construed as if it had the words in it.   It is conceded that the several particulars enumerated do not make up in the aggregate the entire county.   Whatever was part of any one of the enumerated particulars,-if the seashore, for instance, of any particular manor they mentioned can be shown to have been or to be parcel of that manor, that would pass by the grant, as in the case of the seignory of Gower ; but the grant can surely have no further operation.   The reference to the inquisition after Earl Edmund's death may possibly explain how it came to pass that the King did not grant the county, but it cannot make the grant larger or other than it is.  That  Inquisitio post mortem omits the county, whether accurately or not is wholly immaterial.   It may have been that the commissioners and jury on that inquest of office did not consider that, under the grant of the county, the territory or lordship of the entire county had passed, but that the word in the grant to Earl Richard only comprehended the shrievalty in the place of the county, and it may be that they were wrong in that.   But whether right or wrong, there is an entire omission of the county in that inquisition, and there are no words the legal import of which can be extended, so as on any construction to comprehend the county.   The argument of the duchy with respect to this inquisition and the subsequent grants to the duchy appears to amount to this:-Earl Edmund had the county ; every thing that made the county

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valuable, every source of actual revenue or profit, was carefully enumerated in detail in the inventory of his property, and all those particulars were copied into the grants, and expressly granted to the duchy, and that must be considered a grant of the entire county.

  The arguments therefore brought forward in various parts of the Duchy Statement, such as (folio 7),   "that the rights actually exercised by the Dukes lead to the supposition that they had at least rights as extensive as the most potent earls," and that "it is scarcely possible that the first Duke (Heir Apparent) would have been invested with less extensive rights than had been annexed to the lower dignity,"   and (folio 8), quoting, Lord Coke in the Prince's case, "less extensive rights would not be conferred on the Duke than held by the Earls ; on the contrary, there is the strongest presumption they were intended to be maintained, and nothing short of a positive evidence of a contrary intention can avail,"  do not, it is submitted, advance in the least degree the claims now preferred on behalf of the Duchy.

  The argument arising from the probability that the Crown would by its first grant have intended to pass everything that the Earls are alleged to have had is obviously inconsistent with the fact that two subsequent charters each giving much in addition to what was before given, were made, not for the purpose of correcting any omission or slip, but as additional proofs of royal bounty.

  How far the first grant fell short of the creation or grant of a palatinate or quasi sovereign county, is shown by the 2d and 3rd grants to the Duchy, the former conferring on the Duchy the royal franchises of return of all writs and summonses, chattels of felons and fugitives, fines for licences of concord, and for 'trespasses, forfeitures, and amerciaments, and year day and waste, but only such as should arise or be imposed within the Duke's own lands, or on his own men and tenants, and by the last charter was granted all the smaller lands or fees of the Crown in the Duchy which it seems had not passed under the first grant.

  It is insisted on in the Duchy statement by the passage extracted above, that in fact all the Royal Prerogatives did pass by the first charter ; if such were the effect of that charter, it is obvious that no necessity existed, for the 2d charter, as all that are comprised in the latter must have been already conferred on the Duchy, and had vested in the Duke.   In fact, the argument on the part of the Duchy would have been equally valid (if the two last charters had never been granted) in support of the position that all the rights and properties therein expressed to be granted had, by implication, passed by the first charter.

  Positive proof is not wanting that the Royal Prerogatives, other than those expressly granted by the several charters to the Duchy, continued subsequently to the creation of the Duchy to be exercised by the Crown.
  One instance is adverted to in the Duchy statement (folio 6), namely, of the grant of custody of silver mines in the county, and which, for the reason already mentioned with reference to the grant of pardon of outlawry by the King cannot be explained on the ground of the then Duke's minority.
The following is the substance of the grant referred to.   It was made on the same day as the last grant to the Duchy :-

[3d January  11 Edw. III. (1338) ]  "The King, &c. Know ye, that for the good service which our beloved Gawin Southhorp hath done to us, we have granted to him the custody of our mines of silver within the counties of Cornwall and Devon, to hold to him so long as it shall please us, and that of the issues thereof arising, he shall answer to us at our Exchequer as is fitting, to receive such wages &c. as hitherto hath been accustomed for the same.   In testimony whereof, &c., witness the King at the Tower of London, &c."

The following grants may also be referred to for the purpose of showing that the Crown continued to exercise many of its prerogatives not granted to the Duchy;-
  The first document is dated the 13th Edw. III., whereby the King committed to Edward Duke of Cornwall and Earl of Chester, the dear son of the King, the custody of the fort and priory of Mount St. Michael and all the lands &c., to hold during pleasure, rendering therefor yearly 20 marks, and finding various things.   In the 16th Edw. III. the King granted to John Moneroun the custody of the King's mines of silver within the counties of Cornwall and Devon, to hold during pleasure.

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In connexion with this grant to John Moneroirn has been found in the Easter Issue Roll of the 17th Edw, III. the following entry of a payment:-
  "3d May.-To William de Elyndon, keeper of the King's wardrobe, for the price of eight pieces of silver plate, worth.. 68l. 15s. 7d., received of John Moneroun, keeper of the King's mines in Cornwall, and delivered into the Kings wardrobe to make silver vessels for the King's household, 68l. 15s. 7d."
  In the 18th Edw. III., the Abbot of Beaudesart paid a fine 20s. to the King for a confirmation of a charter of Richard Earl of Picts and Cornwall, to the same Abbot, &c., of the Church of St Kieran.
  In the 20th Edw. III., the King commits to John Marreys the office of Alnager in (inter alia) Devon and Cornwall ; so also in 22d Edw. III.
  In the 32d Edw. III., the Sheriff of Cornwall (his own son) is commanded to give seizin to John Petyt, of messuages and lands in Trevans, being the lands of John Roseron, outlawed for felony.
  In the 38th Edw. III., the King confirms to William Leuche for his life the Ferry of Saltash, within the Duchy of Cornwall, granted to him by the Duke of Cornwall.
  In the 44th Edw. III., on the Issue Roll of the 4th December, it appears that there was a delivery of money to divers officers of the Great Exchequer, sent to divers counties in England, to affeer amerciaments, (inter alia,) to John Wardon, in the Counties of Devon and Cornwall, 30s.
  In the 49th Edw. III., there is a commission issued out of Chancery to inquire concerning the custody of Terræ Maritimæ of Cornwall and other parts of the kingdom.  
Several grants were made by the King during this reign of pardons for felony, outlawry, and other offences ; some were pleaded, and are set out in the rolls of proceedings had before justices at the Iters in this county, and were made in the 16th, 22d, 24th, 26th, 27th, 28th, 29th, and 32d years of the reign , the grant of the 26th year being declared to be made at the request of the Duke.

These grants are generally in the form following, mutatis mutandis :-
[22d Nov. 32d Edw. III. (1359) ]   " The King, &c., to all the Bailiffs, &c. Because we find by the record of our beloved and faithful Wm. de Snares- hull and others, our lustices, to hear and o determine divers felonies, &c; in the county of Cornwall, that Richard Keverel, taken and detained in the gaol of Launceston for the death of Stephen Morland, whereof he is charged, kuled the same Stephen in self-defence, so that he could not otherwise escape death himself, and not feloniously or of malice aforethought; we, &c. grant to the same Richard our peace which pertains to us for the death aforesaid, &c., so, nevertheless, that he abide judgment in our Court, if any one will speak of the death aforesaid. In witness, &c."

The Commission under which the King's justices sat in this county in the 32d Edw. III. is in substance as follows :-
[26 Feb.  32d Edw III. (1359.) ]   "The King, &c., to Wm. de Snareshull and others. Know ye that we have assigned you, &c.. to enquire &c., of certain treasons, homicides, robberies, felonies, &c. done to us and Edward Prince of Wales, and others of our people, in the county aforesaid, and to hear and determine all and singular the same things at the suit of us and the same Prince, as of others whomsoever willing to complain or prosecute before you, according to the law and custom of our kingdom of England.   And therefore we command you that at a certain day and place, &c., you hear and determine all and singular the things in form aforesaid, doing thereupon what to justice pertains according to the law and custom of our kingdom of England saving to us the amerciaments and other things to us thereupon belonging ; and we command our sheriff of the county aforesaid that at certain days and place, which you shall make known to him, he cause to come so many lawful men of his bailiwick, as well within liberties as without, by whom truth of the matter may be better inquired of in the premises.   In testimony whereof, &c., witness ourself, at Westminster, the 27th day of February in the 32d year, &c."

  The above commission, besides showing that at this time, when the Duchy was in full enjoyment of its privilege, the King continued to exercise his prerogative of criminal jurisdiction, and reserving to himself the amerciaments and issues arising from these judicial proceedings, refers to the Prince of Wales

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as Duke of Cornwall entitled to receive justice in the King's Courts held in the county, simply as one of the inhabitants there.*

  The record of the proceedings under the last-mentioned commission of the 32d Edw. III. and other years of this reign, are preserved, and furnish many instances of the Duke being amenable to as well as availing himself of the King's tribunals of justice.   Thus in the 28th Edw. III. (1355,) presentments were made against John Kendall for encroachment and injuries against the rights of the Prince with respect to tin.
Also that the same John had trespassed by agisting battle on the park of the Prince at Rostermel.
  Pleadings at the suit of the Prince against Sibella Dame and others for a trespass on the several fishery of the Prince, at Loo, against the peace of the King, and to the damage of the Prince.   The defendants were found guilty.
Pleadings and judgment between the Prior of Plympton and the Prince respecting the right to the passage of Saltash.   The Prior claiming it from Roger de Valletort, a former lord of the borough of Saltash, subject to the yearly rent of 6d., which it was alleged the Duke then received as lord of Trematon.
  Proceedings by the Prince against the sheriff for imperfectly executing the King's writ to supply the Prince with oats.   Judgment for the Prince.
Proceedings by the Prince against Ralph Wyrcon for undue exactions on foreign merchants at the port of Mouscholl, whereby it is declared the Prince loses the profits of the ports in the county.
  32d & 33d Edw. III. (1360)   In this year a session of the Kings justices was held in Cornwall, to inquire if the statutes of workmen and artificers, and also of weights and measures, had been duly kept.
Many convictions took place, and all fines imposed were estreated to the King's Exchequer.
  It may be said also, that the records both of Chancery and the Exchequer of this period show the continued receipt by the King of monies arising from the grants of wardships and marriage liveries of lands held of the King in capite or remaining in his hands by escheat, and for issuing writs relating to persons and premises in the county.

In the Duchy statement (folio 6.) it is observed, that where positive evidence is obtained, it shows the Dukes exercised in connexion with the Duchy high prerogative rights at least as extensive as the earls.  The Duke seized and confiscated the enemies' ships and merchandise in them, as well as neutral vessels, when within the precincts of the Duchy.

  It is not stated what prerogative right is supposed to be evidenced by the seizure by the Duke of enemies' and neutral ships and merchandise within the precincts of the Duchy.   It appears, however, by a commission issued by the Crown, (of which the following is an extract,) that although the King had granted to the Duke that part of the prerogative of his Crown which consisted of "the profits of his ports" in Cornwall, he was far from having divested himself of the supreme prerogative right over the ports and wastes of Cornwall.

  [24th May49th Edw. III. (1376.) ]   " Commission under the great seal directed to Stephen de Cusyngton and others, appointing them jointly and severally to keep all the ports and shores of the sea in which vessels come, and all the sea coast in the county of Cornwall, as well within liberties as without, and to resist all who shall come armed against us by land or sea, and wish to invade our kingdom in the county aforesaid. Moreover, by these presents we firmly command archbishops, bishops, abbots, priors, dukes, earls, barons, knights, bailiffs, ministers, and other our faithful men in the county aforesaid, and also our sheriff of Cornwall, that they be attending, answering, advising, and aiding you and every of you, and your deputies, &c., in those things which pertain

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* This proof of the Earls and Dukes not having a county palatine or prerogative process, by their suing in the King's Courts, is ingeniously used in the Duchy statement as a proof to the contrary, where (folio 10.) it is stated "that it is remarkable that the power of suing in the King's Courts is not given by the charters, yet it has been exercised by the Dukes from the earliest times."
Now if the Duke had been possessed of a county palatine or prerogative process, the King's Courts would not have been held there, or if held there he might have required the sanction of the Crown to sue in them.   It was because he had neither of these franchises, that he had a right to sue in the King's Courts in the county or elsewhere like any other subject, and which the usage mentioned in the statement shows that the Earls and Duke constantly exercised.

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to the safe and secure custody of the county aforesaid.   And that the same sheriff at certain days and places, which for this purpose you shall provide, cause to come before you all the power of the county aforesaid, as well within liberties as without, to do upon the premises what, for the safety of the said county shall seem best to be done, and also those who, &c. you cause to be safely kept in our prison as is aforesaid. In witness," &c.
It will be observed that this writ is not directed to the Duke or to any officer of his, but to the King's Commissioners, whom the King's sheriff is ordered to be obedient to, and to attend with all the power of his county.

Edward the Black Prince dying on the 2d day of July, in the 49th Edw. III., being near the close of that reign, Richard his son was Duke of Cornwall only for a few months, as King Edward's reign terminated on the 20th November following, and Richard ascended the throne.
As Richard II. had no child, the dukedom remained in the Crown during the reign.

On the accession of Henry IV., in l399, his eldest son Henry, afterwards Henry V., became Duke of Cornwall.
  During the period of his dukedom the King continued to exercise prerogative rights in the county.
  [1st Hen. IV. (1399) ]   By an inquisition, taken before the King's escheator (pursuant to writ), the lands of John Fitzkendall, an idiot, situate in Trewerghby, are returned as held by the King.
Also the lands of Joan Trenowa.
  [2d Hen. IV. (1400) ]   By an inquisition taken by the sheriff of the county, pursuant to the King's writ, the value of certain lands in Bodmyn and other places in the county is returned then remaining in the King's hands by reason of an outlawry issued against William Eyr, the late owner, deceased.   And it is found that the said lands were held of different, lords, some of the Duchy, others of the Prior of Bodmyn, others of one Robert Hill, and the remainder of John Pomeroy.
  All these lands, as well as those belonging to John Fitzkendall, mentioned in the preceding inquisition escheated to the Crown at the close of the reign of Rich. II. ; but notwithstanding the revival of the Duchy in the first year of this reign, these lands remained in the King's hands, and were not surrendered to the Duke, as these descriptions of Jura Regalia were not comprised in the Duchy Charter of the 18th March, 11th Edw. III.
  [3d Hen. IV. (1402) ]    By the King's Escheators Roll for this year, the profits of various manors and lands in the county are accounted for as the possessions of John Holland, late Earl of Huntingdon, forfeited for treason, and also the lands of Sir Jno. Shelley, Knight, John Karswell, and Thomas Porter, adherents of the Earl.
[11th Hen. IV. (1410) ]   The same escheator returns this year the sum of 100l. for the issues of the Manor of Bree, in Penwith, which Robert Treselian held on the day of his forfeiture in his demesne as of fee, remaining in the King's hands by occasion of the forfeiture.  
  

The next Duke of Cornwall was Henry the eldest son of Henry VI., born on the 14th October, 31st Hen. VI. (1453), and who died on the 14th March, 39th Hen, VL.(146l).
  The Bill introduced into Parliament in the 32d Hen. VI. (1454), referred to in the Duchy statement (folio 6.), for working silver mines in Devon, Cornwall, Dorset, and Somerset, and appointing a certain portion of the ore for the King, and also a certain portion for the Prince of that which belonged to him, seems to have been abortive for want of the King's consent, as at the foot of the Bill are the words " Le Roys'avisera ;" but as it did not become an Act of Parliament, it is needless to consider this document further.
  It may be mentioned, however, that a clause would have been introduced into the Act if it had passed, saving the right of Isabel Goddard, late the wife of Richard Curson.   This Richard Curson, as John Solers and the Duke of Bedford previously had been, was the Crown lessee of the gold and silver mines in the counties of Devon and Cornwall.
  In the 19th Hen. VI. the King granted to Richard Curzon for twenty years the mines of gold and silver in Cornwall and Devon, and wood and underwood to smelt the same.

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  [33d Hen. VI. (1455) ]    In the Escheator Roll for this year the King is answered for the profits of wardship of lands held in capite, and also of the ward ship of the lands of a tenant who held of other lords besides the King.

  During the dukedom of Edward the eldest son of King Edw. IV., viz. from the 9th to the 22d year of that reign, the following proceedings took place :-
[5 Edw. IV. (1476) ]   In this year the King issued his writ to the feodary of the Duke in Cornwall to return an inquisition of the lands which belong to John Earl of Oxford in the said county, and which by his attainder had been forfeited to the King.
By the inquisition made thereon the Duke's escheator and feodary certifies the lands belonging to the Earl, and which it is stated therein then remained forfeited to the King.
[18 Edw. IV. (1479) ]    In this year a commission issued from the Crown to ascertain the lands and possessions in Cornwall belonging to George Duke of Clarence, and which had become forfeited to the King by his attainder.
The return made thereto specifies the lands which he held in the county.
  It was in the next year that the Act passed which is referred to in the Duchy Statement, folio 7, in these words :-" In the reign of Edw. IV. an Act of Parliament was passed relating to offences against the coin, and certain forfeitures were imposed, which were directed to go expressly to the use of the King's household ; but there is a provision that, as regards Cornwall the forfeiture shall go to the Duke in the same manner as they would in other places go to the King.   This provision being in the nature of a saving clause, its operation being, therefore, not to give to the Duke any new right, but rather as recognizing and preserving a right previously vested in him as a prerogative of the Duchy." [17 Edw. IV. c. 1. (1478-9) ]   The Act above referred to modifies many prior Acts recited therein relating to counterfeit money, and against exporting or melting coin or silver articles, and regulating the money used by alien merchants, which direct the forfeitures imposed for offences against their provisions to be recovered before justices of the peace or by action of debt in any of the King's courts, and declares that half of the same should be paid to the King, and the other half to any city, borough, or port having lawful grants of such forfeitures, or to other parties particularly mentioned.

There is a proviso in this Act, that as for any part of any forfeiture therein contained, which might pertain to the King, it should not extend as to any part of such forfeiture to be had or made within the Principality of Wales, the Duchy of Cornwall, or the Earldom and Counties Palatine of Chester and Flint, nor to either of them ; and it was ordained by the same Act, that Edward, the King's eldest Son, Prince of Wales, Duke of Cornwall, &c., should receive to him and his heirs, Princes of Wales, Dukes of Cornwall, &c., all and every part of such forfeitures as should be made or forfeited within the aforesaid principality, duchy, earldom, counties palatine, or any parcel of the same, in as ample and large form as the King ought or could have such part of forfeiture in any other place by reason of any Act made in the then Parliament, any Act or Ordinance to the contrary made in such Parliament notwithstanding.
There are other provisoes also, that the Bishop of Durham should have the whole forfeitures within his liberties or franchises ; also that the Act should not be prejudicial to the privileges of the Abbey of Westminster, or to the Dean and Chapter of the Free Chapel of St. Martin's le Grand.
The forfeitures given by these Acts are perhaps scarcely to be called part of the Jura Regalia, as they were imposed by Parliament.   They were evidently considered, however, to come within those fines and forfeitures which the Crown had granted away, not, only to the Prince in his principality, and in his duchy and in counties palatine, but to others having royal franchises.
It has been already shown, that in the grant of the 18th March, 11 Edw. III., to the Duchy, there were comprised "fines for trespasses and other crimes, and all amerciaments and forfeitures whatsoever."
In the same King Edw. IV., the possessions in Cornwall of the Duke of Exeter, Earl of Devon, Sir Win. Vaux, and other persons attainted, were granted away by the Crown.

An Act of Parliament of the reign of Hen. VIII., is thus referred to in the Duchy Statement (fol 7.) :-"The Dukes also had their own escheators in Cornwall, and it is deserving of notice, that in the saving clause of the Act of

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Escheators, 1 Hen. VIII. cap. 8. sec. 5. (as is the case in numerous other Acts of Parliament,)  the Duchy of Cornwall is classed with counties undoubtedly palatine."   This Act was passed chiefly to provide for escheators not to return inquisitions except by the finding of a jury, and to impose a qualification to escheators.   There are the two following provisoes in this Act, namely:

" Section 5. That the Act concerning escheators for exercising their office over a whole year together, and letters patent and grants made or to be made by any escheator for term of life or years, or otherwise, extend not nor be prejudicial to any escheator that now is and that hereafter shall be made and ordained in any city or town corporate, or in the Duchies of Lancaster, Cornwall, and the Counties Palatine of Lancaster, Chester, Durham, or Ely, or to any other county Palatine within the realm of England and Wales, and the marches of the same, or to any escheator made or hereafter to be made by any person or persons spiritual or temporal, having authority by reason of any franchises, liberties, privileges, prescriptions, or grant to depute or make any such escheator in the same." " Section 6. That this Act, as to any penalty concerning the sufficiency of escheators and jurors aforesaid, extend not nor be prejudicial to any escheator in cities or towns corporate, nor to any other escheator made or hereafter to be made by any person or persons having privilege to make escheators for taking inquisitions of lands, tenements, or hereditaments, nor to any sheriff or bailiff for or returning in any panel any person or persons before any of the said escheators of less value than is contained in the said Act, the escheator of the Counties Palatine of Lancaster and Chester in this proviso only foreprised and excepted."

  There is nothing peculiar in the Duchy having its own escheator, as that privilege is enjoyed by the City of London, although not a palatinate, and in many other cities and boroughs.   It may be true that the Duchy is classed in the 5th section with counties palatine, but it is not in'cludcd in them.   And in the 6th section, which seems to be intended to protect counties palatine whose escheators had power to make inquisitions of land from the operation of the 2d clause of the Act, directing process to issue out of the king's exchequer, the Duchy of Cornwall is not classed with the Counties Palatine of Lancaster and Chester.

In the 30th year of Hen. VIII. (1539,) Edward, the King's eldest son, was born, and became Duke of Cornwall.
  In this year Henry, Marquis of Exeter, was attainted, and all his possessions (many of which were situate in Cornwall) forfeited to the Crown, and accounted for at the Exchequer.
  It was about this period, and chiefly during the life of this Duke, that upon the dissolution of monasteries the Crown became possessed of large territorial and other rights in this county, as in the other counties of England.
The right of the King to the monastic possessions was, no doubt, secured to him by the Acts of Parliament which passed for the dissolution of religious houses, but we do not find in any of the grants made by the Crown of this vast property, that there was the least recognition, as happened in the case of the Duchy of Lancaster, of the Duchy's rights as a county palatine, much less of its having all the territorial rights of the Crown in this county made over to it, either by its seal in addition to the great seal being affixed to the grants, or any portion of the purchase money paid for the property being accounted for to the Duchy of Cornwall.

  In the 7th year of Queen Elizabeth, a commission was issued and return made regarding the ports and creeks of Fowey in the county of Cornwall, on the part of the Crown.
In the 15th year of the same reign a commission was issued and an inquisi- tion returned, touching all lordships manors, lands, &c. concealed, substracted, and kept from the Queen.   The jury say that there is one chaple standinge upon a rock, with a littell plot of ground belonging to the same, the sea flowing about the same, in the parish of Stratton, yearly rent 4d., and divers other premises in the county of Cornwall, which ought to have come to the hands of the Queen, but had been concealed.
In the 27th year of the same reign another commission was issued to certain commissioners (not duchy officers) to inquire and certify whether one

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Jervain Cornellis, an alien, was seised of a tenement in Dore Street, within the borough of Bodmin, at the time of his death, and died so seised without heirs, general or special, and the jury return that he did so die, and the return was made into the Exchequer.
In the 34th year of the same reign a grant, dated the 15th of February, was made to Henry Warner for 21 years, of the custody or farm of license for salting, drying, and packing of fish, in the counties of Devon and Cornwall, rent 13l. 6s. 8d., heretofore answered, and 10s. more of increased rent payable to the sheriffs of the said counties.   No person whatever to exercise this right without the licence and consent of the said Henry Warner.
In the 39th year of the same reign, a lease, dated 1st July, was granted to John Ashby for 21 years, of all wreck of the sea in Trelugan Manor, rent 2s. 6d., late parcel of the possessions of the Earl of Devon.
In the 9th year of King James I. there was a commission issued to inquire of the goods. &c., of John Cooke, of Tregony, convicted of felony, and a return thereto, setting the same out to the value of 500l. and more.
In the same year a lease, dated the 4th of January, was granted to William Bennett, of escheated lands in Exwell, in the parish of Linkinhorne, to hold for such time as the lands should remain in the Crown.
The Crown's title to these lands was found by two inquisitions.
In the 17th year of the same reign there was a commission issued and return made, finding that lands in Treleigh, Wartha, Redrewith, and Langwithin, and in Liskeard, in the county of Cornwall, had been concealed from the King.

  In the 13th year of King Charles 1., a commission was issued under the seal of the Court of Exchequer, with articles attached, of which the first is to the following effect:-

"1st.   The commissioners are to enquire by oath of good and lawful men within the County of Cornwall, and find out all lands, tenements, marshes, grounds, ozey grounds, either lying in common or in several, which have or now are inned, gained, banked, joined, left bare and dry from the sea, and all other ozey grounds, salt marshes or grounds, and other low grounds and waste grounds, which heretofore have been and now are subject to the surrounding or overflowing of the sea or salt water thereof, and when the same were so embanked or taken in from the flux of the sea, and by whom and when the same. were so embanked and gained."

They were also to set out the bounds, &c. of the same.

Under the authorityof this commission an inquisition was taken at Truro on the 9th of April, in the 13th year of Charles I., before William Coryton and others, who say on their oath that there is,-

"A pier or key situated and being in Porthilly, in the parish of Nevagesie     *    *   *    *    erected and built upon the sea- shore, within the ebb and flow of the sea, worth 2s. yearly, and divers marshes in St. Blazey, overflowed by the sea at high water.  Also marshes near the river Gwarnon overflowed by the sea.   The same in Lostwithiel and Wharebourn, containing 30 feet in length, and 16 feet in breadth, abutting on the river Foy south and west, within full sea mark there, and other houses there so situated, and also the ten houses and ten keys situated in the town of Foye, situated on the south of the passage waye, and other houses and keys there, all built on the seashore, and within full sea mark at Foye.   Also a key in Smythick, divers keys and wharfs in Penryn     *    *     * marshes in the parish of Teack, situated on the river Carnan, and a key containing two roods in length and breadth, used for the discharge and laying of sea sand, and six abutting on the river flowing from Tresillian bridge to Falmouth harbour.
A key or wharf for the discharge of sand, abutting upon a creek of sea called the Creek, in the east of Truro on the south side, and the highway leading from the bridge called Tresillian, which key is covered by the sea at high tide.   Also divers parcels of marshland in Truro overflowed at spring-tides, as also in the parish of CIemens."

There is no trace or suggestion either in the commission or inquisition of any of the lands to which the King's title is thus recorded, forming part of the pos- sessions of the Duchy.    

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  During the reign of King Charles I. divers other commissions were issued and inquisitions found thereon regarding persons attainted of felony ; these were issued out of and returned into the Exchequer on the behalf of the King.
  Among other prerogative rights not granted by the Crown to the Duchy may be mentioned Royal Mines of Gold and Silver which are not comprised in either of the charters to the Dukes of Cornwall ; consequently the Acts of Parliament, 1 Will. & Mary, c. 30.;  5 Will. & Mary. c. 6.;  and 55 Geo. III. c. 134., by which the Crown's interest in such Royal minerals when found in combination with other substances is now governed, make no allusion to any right to such mines appertaining to the Duchy of Cornwall, although there is a special exemption of tin ore in the counties of Devon and Cornwall ; with this single exception, the right of the Crown to the pre-emption of mineral substances containing either gold or silver conferred by those Acts is therefore unqualified, and extends over Cornwall as well as other parts of the kingdom.

  It is further observable, that the Statute 47 Geo. III. sess. 2. c. 24. relative to escheats, makes provision relative to property which may escheat to the Sovereign either in right of the Crown or of the County Palatine of Lancaster, but does not refer to any right to escheats as vested in the Sovereign or the Prince of Wales for the time being, in right of the Duchy of Cornwall.

  Again, although the power of appointing a sheriff for the County of Cornwall has been expressly granted by the Crown to the Duchy, the [greatest part of the] profits were not transferred with the office, and the sheriff appointed by His Royal Highness the Prince of Wales accounts annually for the moneys which he may receive for fines, forfeitures, &c. to the Crown, and not to the Duchy.   The profits thus derived by the Crown vary considerably in amount, in some years they have exceeded 200l., in others they have been less than 50l.   In this case, therefore, although the right of jurisdiction was granted, the revenue arising from it was retained by the Sovereign [except as to the portion expre---ly granted].
[TGG-note: items in square brackets are handwritten insertions of text]

  Before concluding these observations, it should be noticed that the jurisdiction of the Sovereign over the sea, as confided to the Lord High Admiral or Commissioners of the Admiralty, is now exercised by the Board of Admiralty over the sea adjacent to Cornwall, and under which the mines in question extend, and that the profits from Droits of Admiralty are paid to the credit of the public revenue, under the terms of the Civil List Act.   The jurisdiction thus exercised is vested in the Crown by virtue of the same sovereignty as that to which it is entitled to the territorial right to the soil under the sea ; and it is indeed difficult to see why the rights of the Crown should not have application in the one case as well as the other, and yet according to the contention in the Duchy Statement the title in the Crown does not extend to the mines covered by the sea, while it does not appear that any active measures have been taken by the Duchy to establish that these prerogatives do [not] extend to the water covering those very mines and the profits received from it.
[TGG-note: items in square brackets are handwritten insertions of text]

From the records of the Admiralty it certainly appears that towards the end of the last century a claim was made on the part of the Duchy to appoint an Admiral for Cornwall, and the following is a copy of the opinion of the then Attorney-General and Solicitor-General of the Crown (who afterwards became respectively Lord Eldon and Lord Redesdale) and Mr. Spencer Perceval, upon a case submitted to them by the Board of Admiralty in reference to that claim.

"We apprehend that His Royal Highness has not any right to appoint an Admiral of Cornwall under any grant which has been produced to us, and we think it has hitherto been claimed under special grants to the effect of which all the usage stated ought to be referred.   It is evident that the original grant of Edward III. did not convey and was not intended to convey any such right.   The special grant made by King James I. To his son Prince Charles and his heirs Kings of England, operated only as a to himself, and could not by the words his heirs Kings of England, convey the right to any person who could claim the Duchy of Cornwall as eldest son of a King of England under the grant of Edward III., insomuch that even his son (who was afterwards King Charles II.) could not during the life of his father have claimed anything under the grant of James I.   We"

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"apprehend that His Royal Highness is clearly entitled to wreck of the sea under the grant of Edward III. in those parts of the County of Cornwall in which no person is entitled to it under a prior grant of the Crown.
It is the duty of Lord Mount Edgecumbe, as Vice-Admiral, to take care of all such property for the benefit of any person to whom it may appear to belong, and if it shall finally appear to be wreck of the sea, and not part of the cargo of a ship wrecked, to deliver it up to the officers of the Prince of Wales, or such other person as may appear to be entitled to it under such prior grant as is above mentioned.
(Signed)
 JOHN SCOTT,
(afterwards Earl of Eldon,)
JOHN MITFORD,
(afterwards Baron Redesdale.)
Lincoln's Inn, Feb. 26, I799.
Sp. PERCEVAL."

Since that opinion was given, it does not appear that any proceedings have been instituted to establish the claim of the Duchy, and, as a matter of fact the droits of Admiralty accruing in the sea opposite to Cornwall are still taken by the Receiver General under the Board of Admiralty, as already noticed.

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  It is suggested, that the mines and minerals worked from the land and under the sea become by a sort of acquisition annexed to the county.   The Officers of the Crown are unable to find any authority for this suggestion.   What would have to be done with respect to the trial of crimes committed in the deep-sea mines is a matter probably which would require, when the case arises, the interposition of Parliament ; but if it is conceded that the bed and soil of the English seas below low-water mark belong to the Crown ; it is difficult to conceive how the grantee of a manor, honor, or even county, bounded by low-water mark, by extending his works under the Royal property, and so committing a trespass and intrusion thereon, can annex that portion of the property to his own.

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It only remains to notice the last part of the Duchy Statement on the effect of the Duchy charters, where, after saying that they vested in the Duke not only the government of Cornwall, but territorial dominion in and over the county which had been previously vested in the Crowu, with all such Royal Prerogatives as would naturally accompany a grant of so high a character, it insists, "that the Duke held all Crown lands in Cornwall in possession or reversion feudal services, and incidents attaching to these lands, and all prerogative rights as wardships, &c., belonging to the Crown as ultimate and superior lord of the fee."      There seems to be a confusion here of two things quite distinct from each other, namely, the fruits and profits of tenure in the mesne lord and those belonging to the King as lord paramount.

By the Duchy charters certain lands, reversions, feudal rights, and services of the Crown were granted to the Duke.   It was in respect of such territorial possessions that the Duke possessed the seigniory over those lands, and which entitles him as feudal lord, and not as sovereign or the ultimate and supreme lord of the soil, to the wardships, prima seizin, marriages, escheats, and other fruits of tenure mentioned.   These were not jura regalia or prerogative rights but simply the feudal profits which the Duke, like any other great baron or lord in the county as mesne lord under the Crown, was entitled to in his seignory, but he had in addition to these, return of writs, certain fines and for- feitures, wreck of the sea, profits of ports, prisage of wine, and the other profits and privileges defined and granted to the Duke by the charters.   These are prerogatives derived from the King as Sovereign, and so distinguished from the others.

In conclusion it may be observed, that no trace is to be found in the " Prince's Case," or in the modern case of "Rowe v. Brenton," nor as it is believed, in any other case, of any suggestion, either by Counsel or the Court of any peculiarity in the status of the County of Cornwall, or of there being

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any special rules of construction or presumption to be applied to the charters to the Black Prince, except as to the peculiar tenure, which could not have been created without the authority of Parliament.

From the above statement, it is submitted that the reasonable deductions are :----

1st. That since the Conquest, Cornwall has formed an integral portion of the Kingdom of England, and has been subject to the same laws and rules of law as to the Territorial and Prerogative rights of the Sovereign.
2nd. That the Earls of Cornwall were, like the other great feudatories of the Crown, entitled only to those lands, franchises, territorial, and other rights and Prerogatives which were conferred on them by express grants from the Crown ; and that the fact of the grants comprising "some- times more and sometimes fewer jura regalia," shows that those rights were not rights inherent in the Earldom, but were on each occasion to a greater or less extent carved out of the Prerogatives of the Sovereign, according to the will of the reigning Monarch.
3rd. That the rights of the Earls have, however, no bearing upon those of the Dukes, which must be determined by the terms of the charter creating the Duchy, and of the subsequent charters conferring further property and franchises.
4th. That since the creation of the Duchy the Dukes of Cornwall have only been entitled to those rights and prerogatives in respect either of seignory or territorial dominion which were specifically annexed to the Duchy by the Crown.
5th. That the present question is not to be determined by presumption or inference, but by the language of the charters to the Duchy, and that those instruments not only do not contain any words sufficient in law, or indicating any intention to vest the vast tract of land forming the bed of the sea and seashore round Cornwall in the Duchy, but from the explicit enumeration of "all things in kind," which were to pertain to the Duchy, clearly negative any presumption that the Sovereign intended to grant to the Duchy all His territorial rights within the County.
6th. That, on the whole, the Duchy has made out no title to the foreshores of the County of Cornwall, nor to any part of the bed or soil of the high sea around or near that County, and that the English law does not recognize any right of accretion or acquisition by the extension of mineral workings under such bed or soil by the owner of the adjoining land.

Office of Woods,
February 1856.

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